Cain v. Barnwell
| Decision Date | 01 March 1920 |
| Docket Number | 21286 |
| Citation | 87 So. 481,125 Miss. 123 |
| Court | Mississippi Supreme Court |
| Parties | CAIN et al. v. BARNWELL |
APPEAL from chancery court of Jackson county, HON. W. M. DENNY, JR. Chancellor.
Suit by E. B. Barnwell against W. M. Cain and others. Decree for complainant, and defendants appeal. Affirmed.
Decree affirmed.
J. C Broom, for appellant.
Counsel for appellee in their brief argue that the decision of the court on the former appeal of this case Cain et al. v Barnwell, 120 Miss. 209, 82 So. 65, will decide the case on this appeal. Apparently, they do not realize the difference in the records on the two appeals. The first appeal was from the decree of the chancery court, overruling the demurrer to the bill. So that the record then consisted only of the bill and the demurrer. Under the rules of pleading the averments of the bill, for that consideration were taken as true. In the present appeal the record consists of not only the bill and the demurrer, but in addition, the answer and cross-bill by defendants in the chancery court with exhibits thereto, the answer to the cross-bill and the agreed statement of facts. Counsel relies upon certain statements in the opinion delivered in the case on the former appeal to sustain their argument that the decision then made by the court decides in favor of appellee the question of his right to an undivided one-half interest in the lands devised by Mrs. Barnwell to appellants, her nephews. We find the following in the opinion relative to the appellee's rights to such interest:
"There is an alternative prayer in the bill, that, if the court should hold that the will is good and valid the complainant should be adjudged the owner of an undivided one-half interest in the lands devised; that the appellee did not possess a separate estate at the time of the death of his wife, and under our statutes, there being no provision whatever in the will for the husband, appellee is entitled to be awarded an undivided interest in the lands sued for." Cain v. Barnwell, 120 Miss. 225.
There is no provision in the will for the surviving husband and under the averments of the bill, section 5087, Code of 1906, section 3375, Hemingway's Code, applies, the surviving husband as complainant relies upon his statutory rights, and by an alternative prayer in the bill asks that he be declared and adjudged the owner of an undivided one-half of the property described and sued for. Under the averments of the bill he is entitled to this relief, and for that reason the demurrer was properly overruled. Cain v. Barnwell, 120 Miss. 232.
We call the court's particular attention to the statement in the opinion that: "Under the averments of the bill, appellee is entitled to an interest in the land. We also direct the court's attention especially to the following statement in the opinion: "The land, apparently, was the only property owned by the testatrix and is the only property mentioned or devised in the will."
The court will notice upon examination of the cases as reported 120 Miss. 209, that the chief question for decision then was the revocation of the will. It will be noted that the arguments and the opinion of the court were largely addressed to this question, and the other questions raised were but little discussed. After the decision of the main question the court briefly disposed of the other points raised. It will be seen that the decision of the court would have been that the chancery court erred in overruling the demurrer, had it not been that under the averments of the bill, appellee was apparently entitled to an interest in the land.
Now the court when rendering the decision on the first appeal understood that the land devised in the will was the only property owned by testatrix. The facts in the record of the present appeal show that Mrs. Barnwell owned considerable other property in addition to the land devised to her nephews, which consists of about one hundred and thirty-six acres. It is shown that she owned other land, approximately four hundred acres in amount and money and other personal property shown by inventory in the sum of two thousand one hundred dollars, and other personal property such as cattle, horses, furniture, farming implements, etc.
The situation now presented to the court is that Mrs. Barnwell by her will made a specific devise of certain land, a part of her estate. This part is much less than one-half of her estate. She died intestate as to the remaining property owned by her.
Now, appellee, the husband of testatrix, in his bill attacking the will and claiming that it was revoked and in the concluding part of the bill made an alternate prayer asking that if the court should hold the will valid, he should be adjudged an owner of one-half interest in the property. Thus, he elected to claim the right to share in the estate of his deceased wife, under section 5087, Code of 1906, section 3375, Hemingway's Code, as in the case of unsatisfactory provision in the will as provided in section 5086, Code of 1906, section 3374, Hemingway's Code. The chancery court upon the last hearing of the case on which the present appeal is based, decided that he had the right to share with the appellants in the land given them by the specific devise, he taking one undivided half.
This decision in favor of appellee is error. We are assured that the above statement of the former appeal in the case shows beyond question that the supreme court did not so decide, for the court did not then have knowledge that a large part of the estate was not disposed of by will. This makes an entirely different question for decision.
The case presented in this appeal is unusual. We find that in the cases involving the question, which have been decided by the court in the past, all of the estate of the deceased spouse was disposed of by the will. In this case there is a specific devise of less than one-half of testatrix's estate. We now refer especially to the argument made by counsel for appellants in the brief in chief with reference to the right of the appellee to receive one-half of the property devised in such cases as that now before the court where the entire estate was not disposed of, and where that disposed of by the will is less than one-half which the surviving spouse would receive and the argument that the testatrix gave the land to her nephews, and that the court will respect and uphold, as far as possible, her wishes and particularly so, where it will not violate the law or public policy and will work no injury or loss upon the appellee, the surviving spouse.
Appellants in their cross-bill sought to have the chancery court decide the question as to the effect of appellee's election to disregard the will of his deceased wife, and take under the statutes. Whether or not in such case he would be entitled to only one-half of all of the property left by his wife, not only that devised but also that which was not disposed of by will. Appellee's counsel in their brief contend that all that is involved in this controversy and the only property owned by Mrs. Barnwell with which appellants are concerned is the property described in the will. They appear to be opposed to the court's deciding the question generally as to appellee's right to property owned by his deceased wife in the present situation arising from his having elected to claim under the statute. In our view, the court will necessarily have to render a decision in dealing with the entire situation and appellant's right generally. We refer to the argument in the brief in chief relative to this. We do not see how the court can render its decision in this case without dealing with the entire matter of appellee's rights to property left by his wife. Surely, the chancery court erred in giving appellee half interest in the land involved if he is also entitled to all of the remaining estate owned by his wife. We most earnestly ask the court's very careful consideration of the entire situation.
We note the reference, by counsel for appellee, to the case of Gordon v. James, 86 Miss. 719, 39 So. 18, and their reliance upon the decision therein to sustain their contention that appellee is entitled to one-half interest in the land devised. We note in that case that all of the property of testator's estate was dealt with by the will and there was a general residuary clause. So, it will be seen that the facts therein are different from the facts in this case. Because all of the estate was disposed of by the will, the court could therein very properly decide that the surviving spouse, upon the renunciation of the will, became a cotenant with each devisee in each and every part of real estate devised. But in this case, the estate generally, was not disposed of and the question herein for decision is very different from that in the case referred to. We cannot see therefore that it is authority for the present case, nor can we see anything in the later case cited, Williams v. Williams, 111 Miss. 129, 71 So. 300, to support their contention.
The language of the statutes giving the surviving spouse the right to renounce when satisfactory provision is not made in the will and to elect to claim under the statute when no provision is made, is simple and clear. The person claiming shall in no case be entitled to more than one-half of the estate. We now refer to the argument in the brief in chief for appellants with reference to appellee's right to elect to take under the statute and in effect renounce the will in this case.
The chancellor sets forth very fully the facts of the case and his holdings in the final decree from which the present appeal is prosecuted, the ownership by the testatrix of the other property besides that devised is shown and likewise that she lef...
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