Cochran v. Henry

• Decision Date: 18 May 1914
• Docket Number: 16498
• Citation: 65 So. 213,107 Miss. 233
• Court: Mississippi Supreme Court
• Parties: MRS. L. S. COCHRAN et al v. PATRICK HENRY

65 So. 213

107 Miss. 233

MRS. L. S. COCHRAN et al v. PATRICK HENRY

No. 16498

Supreme Court of Mississippi

May 18, 1914

APPEAL from the chancery court of Issaquena county. HON. E. N THOMAS, Chancellor.

Suit by Patrick Henry against Mrs. L. S. Cochran and others. From a decree overruling the demurrer to complainant's bill defendant appeals.

The facts are fully stated in the opinion of the court.

Decree reversed, and bill dismissed.

McLaurin Armistead & Brien and McLaurin & Thames, for appellant.

The attorneys for appellants filed an elaborate brief citing 3 A and E. of Law (2d Ed.), p. 337; 4 Cyc., p. 45 et seq.; Christmas v. Russell, 14 Wall. 69-84, 20 L.Ed. 762; Trist v. Child, 21 Wall. 441, 22 L.Ed. 623; Dillon v. Barnard, 21 Wall. 430, 22 L.Ed. 673; 25 Cyc. 660 et seq.; Wright v. Ellison, 1 Wall. 16, 17 L.Ed. 555; Pratt v. Hargreaves et al., 76 Miss. 955-969, 25 So. 658, 71 Am. St. Rep. 551; Jones v. Moseley, 40 Miss. 261-265, 90 Am. Dec. 327; Slocum v. Grandin, 38 N.J.Eq. 485-488; Ex parte Crafts, 28 S.C. 287, 5 S.E. 718; In re Miller's Estate, 166 Pa. 97, 31 A. 58-62; Fotheree v. Lawrence, 30 Miss. 416; Rothschild v. Hatch, 54 Miss. 554; Shirk v. Neible, 156 Ind. 66, 59 N.E. 281, 83 Am. St. Rep. 150; Matter of Snyder, 190 N.Y. 66, 82 N.E. 742, 14 L. R. A. (N. S.) 1101, 123 Am. St. Rep. 533, 13 Ann. Cas. 441; Davy v. Fidelity & Casualty Insurance Co., 78 Ohio St. 256, 85 N.E. 504, 17 L. R. A. (N. S.) 443, 125 Am. St. Rep. 694; Thompkins v. Nashville etc., Railway Co., 110 Tenn. 157, 72 S.W. 116; Huber v. Johnson, 68 Minn. 74, 70 N.W. 806, 64 Am. St. Rep. 456; Breathitt Coal, Iron & Lumber Co. v. Gregory (Ky.), 78 S.W. 148; Johnson v. Ravitch, 113 A.D. 810, 99 N.Y.S. 1059; Id., 113 A.D. 1123, 100 N.Y.S. 1123; Weller v. Jersey City, H. & P. St. Railway Co., 68 N.J.Eq. 659, 61 A. 459, 6 Ann. Cas. 442; Id., 66 N.J.Eq. 11, 57 A. 730.

Catchings & Catchings, for appellee.

The attorneys for appellee filed an elaborate brief citing Hoffman v. Vallejo, 45 Cal. 564; Harris v. Oil Mills, 78 Miss. 603, 30 So. 273; Holmes v. Evans, 129 N.Y. 140, 29 N.E. 233; Wells v. Railroad Co., 96 Miss. 193, 50 So. 628, 27 L. R. A. (N. S.) 404; 4 Cyc. p. 42 et seq.; 19 Am. and Eng. Ency., p. 13; Nutt v. Knut, 200 U.S. 12, 26 S.Ct. 216, 50 L.Ed. 348; Jeffries v. Mutual Ins. Co. of N. Y., 110 U.S. 305, 4 S.Ct. 8, 28 L.Ed. 156; Gulf, C. & S. F. R. Co. v. Miller, 21 Tex. Civ. App. 609, 53 S.W. 709; Walker v. Walker, 125 U.S. 342, 8 S.Ct. 929, 31 L.Ed. 769; St. L. M. & Co. v. Montana Min. Co., 171 U.S. 650, 19 S.Ct. 61, 43 L.Ed. 320; U. S. v. Trans-Mo. Freight Ass'n, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007; Ft. Worth R. Co. v. Carlock & Gillespie, 33 Tex. Civ. App. 202, 75 S.W. 931; Davis v. Webber, 66 Ark. 190, 49 S.W. 822, 45 L. R. A. 196, 74 Am. St. Rep. 81; Texas Central R. Co. v. Andrews, 28 Tex. Civ. App. 477, 67 S.W. 923; Railroad Co. v. Miller, 21 Tex. Civ. App. 609, 53 S.W. 709.

OPINION

COOK, J.

Charles C. Sanford, a white man died May 27, 1912, owning two valuable plantations situated in Sharkey and Issaquena counties and also personal property of considerable value. Some years before his death he executed his last will and testament, devising and bequeathing to Lillie Daisy Brown, a negro woman, his entire estate, real and personal, reciting in his will that it was his purpose thereby to reward a faithful servant. The testator's three sisters and a brother survived him, they being his heirs at law.

Lily Daisy Brown employed Judge Patrick Henry, an attorney at law, to represent her in and about the probating of the will. The contract of employment was reduced to writing and signed by Lily Daisy Brown, and is as follows:

"State of Mississippi, County of Warren. For and in consideration of five dollars cash in hand paid, the receipt whereof is hereby acknowledged, and for the further consideration of the services rendered to me and to be rendered to me by Pat Henry, attorney at law, of the city of Vicksburg, county and state aforesaid, representing me and my interest which that certain will and writing signed, published, executed, and declared on the 14th day of June, 1900, by one C. C. Sanford, deceased, wills, devises, and bequeaths me and in enforcing the provisions of said will, by which and through which all of the estate, both real and personal, of the said C. C. Sanford, late of the county of Issaquena, state of Mississippi, was by said will devised and bequeathed to me.

"I now of my own free will and accord do, in consideration as aforesaid, hereby agree, obligate and bind myself to pay to said Pat Henry, attorney at law as aforesaid, one-half (1/2) of whatever the courts of the state of Mississippi may by decree or judgment or otherwise declare to be my interest in said estate of the said C. C. Sanford, so willed, bequeathed, and devised to me as aforesaid. And I hereby, in consideration as aforesaid, further obligate myself not to compromise, assign, or sell, or by any writing which may operate as an assignment, sale, or compromise, any of my said interest in said estate without the joint signature and the consent in writing of the said Pat Henry aforesaid is first obtained and given by him.

"The intention and purposes of this writing being that I hereby bargain, sell, assign, transfer and set over to the said Pat Henry one-half (1/2) or fifty (50) per cent. of whatever in lands, moneys, choses in action and personal property that I may be entitled to receive by and through that certain writing dated on the 14th day of June, 1900, and signed and declared by C. C. Sanford to be his last will and testament, either by judgment or decree of any court, or by whatever compromise or settlement which may be entered into by me after the consent of the said Pat Henry is first had and obtained. And to enforce the provisions of this agreement I hereby acknowledge a lien upon all property, both personal and real, choses in action and otherwise which may be bequeathed or adjudged to be coming to me through the provisions of said will, and I hereby further nominate and appoint the said Pat Henry my full, lawful, and legal attorney in fact to sign my name, and to receipt for any moneys which may be or hereafter become due to me by and through the said will of the said C. C. Sanford, deceased, and do hereby give said attorney full power to commence or institute action either at law or equity or to defend or litigate any action or suit that may be brought against me as the devisee, legatee, or the beneficiary under the will of said C. C. Sanford as aforesaid, in any court of law or equity with full power to said attorney of accepting or serving affidavits on oath; giving to the said Pat Henry full and unlimited power to act for me and in my stead, with the power to him to sign my name to any deed or other instrument of writing, or to collect any funds or any amount in lieu of any property to which I may be entitled, and to sign my name and receipt in satisfaction thereof. And with the power to him, the said Pat Henry, to compromise or arbitrate any litigation or right of action or rights which I may have under and by virtue of the said will so signed on the 14th day of June, 1900, by the said C. C. Sanford.

"And in consideration of all of which I hereby promise to corroborate and approve of all actions done and performed by him in this regard, in the matter of the said estate, as same were done and performed by me, all interlineations made and written before the signing hereof.

"Witness my signature this 15th day of June, A. D., 1912.

LILLIE DAISY BROWN.

"Witnesses:

"D. V. Solari.

"J. B. Benton."

This instrument was properly acknowledged and duly recorded on the record of deeds of Issaquena county on the 6th day of July, 1912.

The will was in due time offered for probate. In the meantime the brother and sisters of the testator, anticipating that some will might be offered for probate, had filed with the clerk this objection to the probating of the will of C. C. Sanford, vix.:

"To the Honorable Chancery Court of Issaquena County, Mississippi: We, the undersigned attorneys for Mrs. L. S. Cochran, Robert Sanford, Mrs. H. C. Burch, and Mrs. Alberta Foolkes, heirs of C. C. Sanford, deceased, having become advised that there is probably a pretended will said to have been left by the said C. C. Sanford. Now, therefore, we, as said attorneys aforesaid, acting for the heirs aforesaid, do hereby protest against and object to the probating of said will, according to section 1990 of the Code of 1906, if said will be filed for probate."

It seems that the clerk, on June 22, 1912, admitted to probate the document purported to be the will of Sanford, but declined to issue letters testamentary to Lillie Daisy Brown, who was named therein as executrix, without bond. It appears that the objection to the probate was treated as a caveat, but no issue devisavit vel non was ever made up or tried.

On the 9th day of July, 1912, Lillie Daisy Brown executed the following deed of conveyance, viz.:

"I convey and quitclaim unto C. W. Cochran all right, title claim, or interest I may own or have any right to in that certain tract of land situated in Issaquena county Mississippi, and known as the 'Dixie Plantation,' which plantation was owned by the late C. C. Sanford at the date of his death, and for the same consideration I convey, sell, and deliver by this instrument all right, title, claim, or interest I may own or have any right to in all the personal property of every kind and description owned by me or the late C. C. Sanford at the date of his death, and situated on said 'Dixie Plantation,' and in the possession or use of either myself or the said C. C. Sanford at the time of his death; it being my intention by this instrument...