Buchanan v. Buchanan, 41167
| Decision Date | 18 May 1959 |
| Docket Number | No. 41167,41167 |
| Parties | Mrs. T. J. BUCHANAN v. Mrs. Oneta BUCHANAN. |
| Court | Mississippi Supreme Court |
McFarland & McFarland, Bay Springs, for appellant.
Oates & Oates, Bay Springs, Aaron L. Ford, Jackson, for appellee.
T. J. Buchanan died intestate about the year 1934 owning the 70 acres of land, one-half interest in which, subject to a life estate, is involved in this suit. Buchanan left as his heirs at law his widow, complainant below and appellant here, and three children, I. E. Buchanan, F. P. Buchanan, and Mrs. Bessie Mae McNeil. In 1934, F. P. Buchanan and Mrs. Bessie Mae McNeil, two of the said heirs, conveyed their interest in said lands to the appellant, Mrs. T. J. Buchanan, and I. E. Buchanan, who lived on the land with his mother. On September 10, 1938, appellant, Mrs. T. J. Buchanan, executed a deed to I. E. Buchanan in the words and figures as follows:
'The State of Mississippi
'County of Jasper
'In Consideration of $10.00 and other valuables, I, Mrs. T. J. Buchanan, being one of the heirs of T. J. Buchanan, deceased, and grantee of F. P. Buchanan and Bessie Mae (Buchanan) McNeil, grantors, I convey and warrant to I. E. Buchana, his heirs and assigns, all my right, title, interest and claim in and to:
'It is understood and agreed, that the said Mrs. T. J. Buchanan, grantor, shall have and hold all her right and title to above described property so long as she shall live, but at her death the said I. E. Buchanan, Grantee, shall claim and hold all right and title, in both personal and real properties, constituting and being the estate of the said Mrs. T. J. Buchanan, and T. J. Buchanan, Deceased.'
This deed was duly acknowledged and was thereafter on May 12, 1944, filed for record and recorded in the chancery clerk's office. In June 1958, this suit was filed by Mrs. T. J. Buchanan, complainant, against Mrs. Oneta Buchanan, sole heir at law of I. E. Buchanan, who died intestate on December 7, 1957. The original bill of complaint prayed for the cancellation of the deed from appellant to I. E. Buchanan dated September 10, 1938, on the grounds (1) that complainant did not sign the deed and knew nothing of its existence until shortly before bringing this suit; and (2) because said deed is testamentary in character and was inoperative as a deed of conveyance. There was no proof on the part of the complainant that she did not execute the deed.
The question for our decision is whether the written instrument executed by Mrs. T. J. Buchanan on September 10, 1938, is a deed or whether it is testamentary in character and inoperative as a deed of conveyance.
A number of cases have been decided involving instruments designated as deeds and in the form of deeds but which were held to be testamentary in character and inoperative as deeds of conveyance. In all of these cases, the language of the instrument was such as to make it clear that the grantor intended that the instrument itself would not take effect until the grantor's death. Cunningham v. Davis, 62 Miss. 366; Simpson v. McGee, 112 Miss. 344, 73 So. 55, 11 A.L.R. 4; Martin v. Graham, 114 Miss. 653, 75 So. 447; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A.L.R. 5; Knight v. Knight, 133 Miss. 74, 97 So. 481; Tapley v. McManus, 175 Miss. 849, 168 So. 51; Ates v. Ates, 189 Miss. 226, 196 So. 243; Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892, 6 So.2d 318; Mims v. Williams, 192 Miss. 866, 7 So.2d 822.
Appellants urge that the provision in the deed in question that the grantor 'shall have and hold all her right and title to the above property so long as she shall live' (emphasis added), means that the grantor did not intend to part with any present interest in the property, and, therefore, the instrument is testamentary in character and inoperative as a deed of conveyance. We are of the opinion that there is nothing in the deed...
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Collier, Matter of, 51760
...with the statute governing the execution of wills. We have numerous cases involving this question and the case of Buchanan v. Buchanan, 236 Miss. 751, 112 So.2d 224 (1959) summarizes our cases on the question. In Buchanan we An analysis of our cases on the subject indicates that the rule is......
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Oaks v. Ball (In re Estate of Greer)
...51, 52 (1936) ; Smith v. Buffington, 176 Miss. 889, 170 So. 816 (1936) ).6 Ford, 485 So.2d at 1045 (citing Buchanan v. Buchanan, 236 Miss. 751, 756–57, 112 So.2d 224, 226–27 (1959) ; Tanner v. Foreman, 212 Miss. 355, 54 So.2d 483 (1951) ; Watts v. Watts, 198 Miss. 246, 22 So.2d 625 (1945) ;......
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Ford v. Hegwood
...law appertaining thereto and may be effective notwithstanding failure to comply with the statute of wills. Buchanan v. Buchanan, 236 Miss. 751, 756-57, 112 So.2d 224, 226-27 (1959); Tanner v. Foreman, 212 Miss. 355, 54 So.2d 483 (1951); see also, Watts v. Watts, 198 Miss. 246, 22 So.2d 625 ......
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Estate of Greer v. Ball
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