1915. J. P. Joiner. "Witnesses: We, the undersigned witnesses, hereby sign as subscribing witnesses, at the request of the above-named testator, J. P. Joiner, and have signed in his presence, and he in ours, and all in the presence of each other, this the 21st day of October, A. D. 1915. "A. F. Gardner. acres, in Leflore county, Mississippi, to share | tate. The testator had two nephews, neither equally, said property being that heretofore de- of whom is mentioned in the original will. It vised by me to my said son, Dorsey Joiner. "In witness whereof, I have signed, published appears that the codicil serves more than one and declared this instrument as a codicil to my purpose in this case. By item 1 of the codicil last will testament, dated the 18th of February, the mansion house of the testator is devised 1915, on this the 21st day of October, A. D. to his wife. By item 3 the Lower Holly Grove plantation, consisting of about 700 acres, is devised to the two nephews, J. J. Church and Ben L. Joiner. So far, the codicil changes the original will, and that without dispute. The only controversy and the only doubt arises from a construction of item 2 of the codicil. In our judgment it is significant that the testator does not say in item 2 of the codicil that he revokes item 3 of the original will. His statement is: "I desire to change and do hereby change item 3." Much stress is laid by counsel for appellee upon the language "in lieu thereof." It is contended that this language is plain and unambiguous, and that the particular devise in the codicil revokes the general residuary clause in item 3 of the will. If this contention is sound, then the testator failed to make disposition of his personal property, and a partial intestacy is produced. It is altogether improbable that the testator by his codicil intended to revoke his gift of personalty to his son. The introductory clause of the will declares that the testator is "desirous of making a will by which to dispose of my earthly possessions." The testator started out to make a full and complete disposition of his property. In his original will he accomplished this result. * It will be observed that in the original will the testator disposes of all of his personal property. The codicil makes no reference whatever to personal property. In item 3 of the original will appellant is given "all the remainder of my real and personal property not disposed of herein." In item 2 of the codicil the testator says: "I desire to change and do hereby change item 3 of my said last will and testament and in lieu thereof hereby give and devise to my said son, Dorsey Joiner what is known as the R. L. Portwood place, consisting of 40 acres at or near Sunnyside, Leflore county, Mississippi." Appellee, the widow, filed her petition, asking for a construction of the will and codicil and particularly item 2 of the codicil, and claims that as to the personal property bequeathed in item 3 of the will the testator died intestate, or, in other words, that item 2 of the codicil revokes the devise of the personalty as originally made in item 3 of the will. Appellant answered the petition, taking issue with Mrs. Joiner upon her construction of the will, and contending that the will and codicil should be so construed as to prevent a partial intestacy as to the personal property bequeathed in item 3 of the original will, and that the primary object and purpose of item 2 of the codicil is simply to alter the devise of real estate. The primary question, then, for decision is whether J. P. Joiner died intestate as to the personal estate bequeathed in item 3 of the will. The chancellor ruled that the codicil revoked the devise of the personalty to appellant, and that as to said personalty J. P. Joiner died intestate, and the same descended to his heirs at law. | [3] The case is not without difficulty, but in construing the codicil it "must be construed as a part of the will to which it is attached or to which it refers. A codicil is defined as an addition or supplement to a will, and, unless it shall contain express words of revocation applicable to all existing wills, it does not work a revocation, except to the precise extent that the intention of the testator as it is contained and expressed in the codicil is irreconcilable and inconsistent with his intention as it has been expressed in the wills. Every effort should be made to reconcile the provisions of all the writings and to give effect to them, or, to speak with more precision, to the various parts of the same instrument." Underhill on Wills, vol. 1, p. 343. Again it is stated by Mr. Underhill on page 342: "It is well settled that a gift stated in clear and unambiguous terms in a will cannot be revoked or cut down by ambiguous terms or uncertain language in a subsequent will or codicil." [1, 2] In construing the will and codicil, it is the duty of the court to ascertain the controlling intention of the testator; and, in arriving at the testator's intention, effect should be given as far as possible to all the provisions of the will and codicil, read as one document. A devise contained in the will should [4] In a close case, we believe we are aided not be upset unless the words employed in by these elementary rules of construction, the codicil show a manifest intention to re- and that they assist us in arriving at the true voke the gift contained in the will, or unless intention of the testator. It should be resuch intention to revoke is necessarily infera-membered that the very office of the codicil ble from the words of the codicil. In the is primarily not to revoke a will altogether, present case appellant is the only son, is one of the two heirs, and the natural object of testator's bounty. In the original will, the son by item 3 was made the residuary legatee and devisee of both personal and real es but simply to modify, change, or alter the original will, and that a codicil reaffirms and republishes the will. The codicil and will are construed together as one instrument and in the light of these rules of construction it would appear in the case at bar that the purpose of item 2 of the codicil was to devise to appellant a specific 40 acres of land in lieu of a general devise of real estate under the residuary clause. It is the holding of our court in McGehee v. McGehee, 74 Miss. 386, 21 South. 2, that: "Where a devise or bequest in a will is clear and free from doubt, the intention to revoke by a codicil must be equally clear and explicit in order to work a revocation." And in one of the cases cited with approval by our court in the McGehee Case is University v. Pinckney, 55 Md. 365, holding that on this construction of a codicil "all the cases agree." In Jarman on Wills, vol. 1, p. 179, it is said: "Again, in Deo d. Murch v. Marchant, where by will an estate was devised to A. in fee, and by codicil instead of' that devise the estate was given to A. for life, with alternative contingent remainders to her children and her collateral re lations which failed, A. was held entitled to the fee; instead of the devise in the will' being read instead of so much of it only as was incompatible with the codicil,' and the codicil not disposing of the ultimate fee. And where a trust fund, which by will was given to the children of A. living at a stated period, with a power of advancement in the trustees, was by codicil 'in lieu of such disposition' given to the children of A. living at a different period, and in other respects the will was confirmed, it was held that the power of advancement was not re voked." amounts there given should be all that the lega- Within the spirit of the authorities mentioned, we can safely paraphrase the language of the testator in item 2 of the codicil as follows: by making a specific devise of real estate in "I desire to alter item 3 of the original will place of the general devise to my son in the original will, and in lieu of the disposition made of the remainder of my real estate in item 3 I heredevise to my son the Portwood place, consisting of about 40 acres," etc. So understood, the codicil leaves intact the disposition which the testator made of his personalty, prevents a partial intestacy, and accomplishes the primary purpose indicated by the testator in the introductory clause of Under this authority the expression "in his will; that is, of making full disposition lieu thereof" may or may not mean the to- of all his earthly possessions. The personal tal substitution according to the circumstanc- property was clearly disposed of by the will, es and the other language employed. See, al-It is nowhere disposed of by the codicil. so, on this point Schouler on Wills, vol. 1, par. 437; Theobald on Wills (7th Ed.) p. 750. And in Underhill on Wills, vol. 1, par. 251, it is said: "The provisions of the later will or codicils will prevail over those of the former, but only so far as they are inconsistent and irreconcilable with them." A case in point is In re Estate of Chas. Sigel, Deceased, 213 Pa. 14, 62 Atl. 175, 1 L. R. A. (N. S.) 397, 110 Am. St. Rep. 515, holding as indicated by the headnotes: "A gift once made by will is not to be cut down by a subsequent codicil, unless the intention of the testator to that effect appears clearly or by necessary implication. "The right of an heir under a clause in a will directing the residue to be divided between testator's heirs is not cut down by a subsequent codicil giving him a specific legacy, 'and no more." " In that case the codicil read: "I give to my sister, Matilda Sigel, of Kirchheim, Germany, Mary Schmidt, of East Orange, N. J., and Mary Schudt, of West Seneca, N. Y., each one thousand ($1,000) dollars, and to Gus Schudt, my nephew, two thousand ($2,000) dollars, and no more." The court by Potter, J., among other things, said: "All three legatees were heirs at law of the testator, and, in the absence of the codicil, would have been entitled to share in the distribution of his estate under the residuary clause of his will. * * Appellant claims that this construction of the will is erroneous, and that, by the use of the words 'and no more' in the codicil, the What, then, did the testator intend should become of it? To uphold the contention of appellee it must be said that the testator revoked the disposition of his personalty and then gave it to no one. This certainly is not the result which he intended to accomplish. The general rule of construction is that "a clear gift cannot be cut down by any subsequent words, unless they show an equally clear intention." In re Lewis' Appeal, 108 Pa. 133. We can in the present case limit the sense or meaning of the codicil in a way to allow both will and codicil to take effect, and by so doing find and effectuate the declared intention of the testator. Marshall, Executor, v. Hudley, 50 N. J. Eq. 547, 25 Atl. 325. The decree of the learned chancery court will be reversed, and the cause remanded. Reversed and remanded. MISSISSIPPI FARMS CO. v. FLURRY et al. (No. 20079.) (Supreme Court of Mississippi. April 15, 1918.) Appeal from Chancery Court, Stone County; W. M. Denny, Jr., Chancellor. and Henry R. Flurry and others. Decree for Suit between the Mississippi Farms Company the latter, and the former appeals. Affirmed. Parker & Robinson, of Wiggins, for appellant. W. C. Batson, of Wiggins, for appellees. MCCLELLAN, J. [1] The plaintiff Clark, was injured by rock falling upon him in the room of a coal mine operated by the defendant (appellee), in which room he was then engaged in loading coal on a car under his employment by, and in the service of, one Latham who, as a contractor with defendant, had contracted to mine coal in certain parts of defendant's mine at a stipulated compensation a ton. The appellant asserts that his first count was intended to declare upon the breach by the defendant, the mine operator, of the duty established and defined in section 38 of the act approved April 18, 1911 (Gen. Acts 1911, pp. 500, 514). That section reads: "It shall be the duty of persons operating coal mines in this state to keep at a convenient place at or near the main entrance of the mine, or in the mines, a sufficient supply of props and other timbers useful for propping therein, of suitable lengths and sizes, for those working in such mines. It shall be the duty of those work ing in said mines who need props or other timbers to select and mark the same when needed for propping by them, designating on such props or timbers the place at which the same are to be delivered or give notice to the person whose duty it is to deliver or have the same delivered, of the number and kind of props or other timbers needed and of the place at which they are to be delivered. It shall then be the duty of the operator to promptly deliver, or cause to be delivered, such props or other timbers at the place designated." It is clear from the terms of the statute that the duty to designate the props or timbers desired or to give notice of the number and kind of props or other timbers needed and of the place at which they are to be delivered is laid upon the workman himself, and that he (the workman) must make the required designation or give the notice, to the end that the duty to deliver the props or other timbers may be imposed upon the operator. Whether the quoted section has application otherwise than as between the master and servant, the mine operator and its employé, only, is a question of doubtful solution; and its decision is not, as will appear, essential to the proper disposition of this appeal. The gravamen of the first count is that the defendant negligently failed, to the plaintiff's proximately resulting injury, to promptly deliver props and timbers of the character described in the quoted section at the plaintiff's working place in the mine. The other counts proceeded on the theory of the existence of the relation of master and servant between the plaintiff and the defendant; but the undisputed evidence disclosed no such relation. Hence, a recovery on those counts could not be had. In the first count it is also averred: "And plaintiff alleges that the said Latham, whom plaintiff was assisting in working on his said contract in said mine where he was injured as aforesaid, had, before the said injuries occurred, designated on said blackboard the timbers needed by said plaintiff in his working place, under such rule of defendant, and thus demanded said props and timbers needed in his working place, and of the number and kind of props and timbers so needed and of the place at which they were to be delivered. "And plaintiff alleges that it then became the duty of the defendants to promptly deliver, or cause to be delivered, the said props and timbers at his said working place." The quoted section requires, as a condition to the imposition of the duty to deliver the props or timbers, that the workman needing the props or timbers either designate by marks on the desired materials the place where the delivery is to be made, or acquaint the person whose duty it is to deliver the materials or to have the materials delivered with "the number and kind of props or other timbers needed and of the place at which they are to be delivered" (italics supplied). The action of the court in giving the general affirmative charge for the defendant was entirely justified by the failure of the evidence to show, in any degree, that notice was given to the defendant of the place at which props or timbers to be used in the plaintiff's working place should be delivered. It appears that this contractor, Latham, had six or seven rooms which he was having mined under his contract with the defendant. The data placed upon the blackboard opposite Latham's name did not designate the place at which the desired materials were to be delivered. There is no evidence that Latham was the representative of the defendant to accept or receive the notice defined in the quoted section. The testimony, given by the plaintiff himself, that it was Latham's duty "to set the timbers up" did not serve to prove compliance with a prerequisite of the statute to the imposition of the duty to deliver the props or timbers, viz. that notice of the place of delivery should be given as the section contemplates. [2] The other rulings of the trial court on the sufficiency of pleas were without prejudice to the plaintiff, even if it be assumed (not decided) such rulings were erroneous, since the plaintiff's evidence failed to carry the burden of proof resting on him under the averments of the first count. There was no error in any of the rulings on the admission of evidence. Under the statute, in the light of the evidence in this record, what was said between Latham and the plaintiff with respect to the propping of the roof was immaterial. No prejudicial error appearing, the judgment is affirmed. Affirmed. ACCOUNT OF 1. INSANE PERSONS 65 GUARDIAN-LIABILITY FOR FUNDS IMPROVIDENTLY EXPENDED. Where a guardian compromised and settled an insane ward's interest in an insolvent corporation with the adversary stockholder, and adversary paid the whole amount stipulated in consideration of release of ward's rights, the guardian should be charged in his final account with such amount, less proper credits; money not received by him having been improvidently expended at his direction. 2. INSANE PERSONS 65-ACCOUNTING. A ward, formerly insane, claiming the proceeds of compromise and settlement by his guardian in a lawsuit, must abide by the sum realized, and concede guardian his reasonable expenses and charges incurred in the litigation. Appeal from Probate Court, Jefferson County; J. P. Stiles, Judge. Proceedings in probate court by H. M. Harton against Charles B. Powell, guardian, to effect a settlement. From decree settling the guardian's account, Harton appeals. Reversed, and rendered. Stokely, Scrivner & Dominick, of Birming-, of appellant's rights in the litigation or in ham, for appellant. C. B. Powell and Cole- the insolvent corporation, the sum of $1,man & Coleman, all of Birmingham, for ap- 750 was to be paid to appellee for and on pellee. account of the law firm of which he was a member and his law partner, as receiver, to SAYRE, J. The question on appeal in this cover all charges he might make in the cause case arises out of the settlement in the pro- in which he had been appointed, and $500 bate court of the appellee's guardianship of for bonds executed by said receiver and comthe estate of appellant, some time a lunatic. plainant in said cause, "and $250 for and on Upon appellant's recovery of his mind and account of whatever interest the said Harhis discharge from the asylum, where for ton may have in the property and assets and some time he was detained, he caused appel-stock" of the insolvent corporation. Notlee to be summoned to a settlement of the withstanding this form of the agreement of guardianship, to which, meantime, he had compromise, dictated by appellee, every dolbeen appointed by the court. From the decree settling the guardian's account the erstwhile lunatic has appealed on grounds that will appear. [1] The difference between the parties arose out of appellee's compromise and settlement of an action which he as guardian had brought in the chancery court to recover appellant's interest in the Ensley Development Company, an insolvent corporation. Appellee compromised and settled appellant's claim with the adversary stockholder of the corporation for the sum of $2,500. This adversary stockholder denied that appellant had any interest in the assets of the corporation, but, to buy his peace, and indifferent as to the disposition of the money, paid to appellant certainly as much as $1,000, and the balance of the stipulated sum he paid either to appellee or to appellee's law partner, who had been appointed receiver of the estate of the corporation. lar of the whole amount was paid on the consideration of appellee's release of the rights of his ward in the corporation, and with every dollar of it appellee should have been charged after the allowance, not necessarily of such credits as appellee had arranged for, but of such credits as the law would allow to a faithful trustee. The agreement shows an allowance to the receiver of $1,750 besides $500 for making bonds. This receivership lasted less than a week, being superseded on appeal. The property of the corporation consisted of a tract of land which had been laid off into town lots, some money in the hands of an officer or agent of the corporation, where it remained pending the receivership, and some small debts due from tenants. The duties of the receivership, during its brief span, may, accurately enough, be described as nominal. The evidence goes to show that $100 would have been a fair compensation for the reBy the decree of the probate court appel- sponsibility assumed and the duties performlee was charged with the sum of $1,000, for ed by the receiver. The receiver seems to the reason, evidently, that the proof showed deny the receipt of the sum charged to the he had received that much, and, after allow receivership; but, wherever it went, its diing appellee credits for certain services ren-rection was ordered by appellee, it was exdered by him to the estate, the decree charged him with the balance and interest to date. Appellant complains of the decree, for that it failed to charge appellee with the entire amount of the sum paid by his adversary in the equity proceeding. Our judgment is that appellee should have been charged according to appellant's contention. pended improvidently, to say the least, and with it, less the receiver's compensation in the amount indicated by the evidence, the guardian should have been charged on his final settlement. In the probate court appellee was allowed certain credits aggregating the sum of $544.65, for his services as an attorney in deAppellee had authority to compromise and fending the interests of his ward in various settle the litigation in the equity court, sub-litigated cases in which said interests were ject, however, to a rigid responsibility to his ward for the providence and good faith of his disposition. Echols v. Speake, 185 Ala. 149, 64 South. 306, Ann. Cas. 1916C, 332. [2] The appellee as guardian exercised a most delicate trust. That trust existed solely for the benefit of the ward, whose rights and interests alone were to be considered. Lee v. Lee, 55 Ala. 590. Appellant is claiming the proceeds of the settlement, must abide by the sum so realized as the fair equivalent of his interests in the insolvent corporation, and must concede to appellee his reasonable expenses and charges incurred in the litigation. The agreement of compromise stipulated that of the sum of $2,500, realized from the release involved, for an attorney's fee expended in the matter of a writ of habeas corpus to procure the release of the ward from the insane hospital, and for commissions and court costs. In these items no error has been shown. They will therefore be allowed as they were in the probate court. Appellee, Powell, has taken a cross-appeal; but no argument has been submitted on behalf of the cross-assignments of error, and they have not been considered. Proceeding to render the judgment that should have been rendered in the court below, the court charges appellee with the sum of $2,500, credits him with $644.65, and finds that the difference $1,855.35 with interest |