Doran v. Beale

• Decision Date: 08 December 1913
• Docket Number: 16,143
• Citation: 63 So. 647,106 Miss. 305
• Court: Mississippi Supreme Court
• Parties: E. W. DORAN v. E. J. BEALE, et al

63 So. 647

106 Miss. 305

E. W. DORAN v. E. J. BEALE, et al

No. 16,143

Supreme Court of Mississippi

December 8, 1913

APPEAL from the chancery court of Holmes county, HON. J. F. MCCOOL Chancellor.

Suit bye E. W. Doran against E. J. Beale and others. From a decree sustaining a demurrer to the complaint, plaintiff appeals.

This is an appeal from a decree sustaining a demurrer to the bill of complaint filed by appellant in the court below. The opinion states the facts. The demurrer is as follows:

"And now come the defendants by their solicitors and demur to the bill as amended of complainant, and for causes of demurrer assign the following:

"First. Said bill as amended shows that Florence Beale Doran, the wife of complainant, was a nonresident of the state of Mississippi at the time of her death, and that she resided in the county of Champaign, state of Illinois, and that the complainant was a nonresident of the state of Mississippi and that he resides in the state of Arkansas.

"Second. Under complainant's renunciation, made in Illinois, he was bound to take such legal share of his wife's estate as is accorded to him by the laws of Illinois, and is not entitled to share in said estate as is accorded by the laws of Mississippi.

"Third. The renunciation of the provisions of the will made and probated in the state of Illinois, the place of residence and domicile of the wife of complainant at the time of her death does not have the effect to render the estate intestate, so that the husband can take that portion of the real estate of his wife situated in Mississippi claimed by said bill. His rights in the premises are governed by the law of the domicile.

"Fourth. The renunciation of the husband in the proper court of the domicile of the testatrix in Illinois would have the effect to entitle him to whatever rights he might have by the laws of the domicile, but would not, and does not, have the effect of a legal renunciation, or the entire absence of any provision for him in the will, made, or existing under the laws of the state of Mississippi.

"Fifth. The complainant in this cause does not take an interest in the lands described in his bill in accordance with the laws of Mississippi governing the descent, distribution, and inheritance of land in Mississippi.

"Sixth. The conveyance of S. M. Cox and wife to Jane R. Beale Florence Beale Doran, and E. J. Beale, made Exhibit B to complainant's bill, created an estate of joint tenancy as between said Florence Beale Doran and E. J. Beale, and the interest of Florence Beale Doran as joint tenant at her death passed to said E. J. Beale, and did not pass by her will and was not subject to devise by her.

"Seventh. The land cannot be partitioned until after the satisfaction of the incumbrances on same as shown by the pleadings and exhibit which matures November 12, 1914.

"Eighth. The bill and amended bill of complaint and the exhibits therewith filed show that complainant has no interest whatever in the land described in said bill, and is not entitled to the relief sought by him in this cause.

"Ninth. Said bill and amended bill are otherwise informal, defective and insufficient; and defendants pray the judgment of the court if they shall be required to make further answer thereto."

Reversed and remanded.

W. L. Dyer, for appellant.

The demurrer of defendants to the bill of complaint as amended should have been overruled by the chancellor; there is no merit in any of the nine objections alleged in the demurrer. In reality, there is but one question of law arising on this whole record, and that is whether or no the surviving husband of Mrs. Doran inherits under the law of Mississippi a half interest in her lands in this county, despite the will; and this question the chancellor decided wrongly.

Inasmuch as there are several other grounds alleged in defendants' demurrer to the bill, I desire to discuss them before proceeding to the main question. The first allegation of the demurrer is a statement of the respective residences of complainant and his wife at the time of her death; this is a correct statement of the facts, as may be seen by reference to the bill. Its weight as matter of law is beyond me, so I pass it on up to the wisdom of the court.

The ground alleged in the demurrer sets up an estate of joint tenancy between Ed. J. Beale and Mrs. Florence Doran as to the four-fifths interest owned by them jointly, and asserts that her interest passed at her death to him by survivorship.

This is a very strained construction to give Cox deed, and is at war with the actual construction put on that instrument by the parties themselves in this very record. They have pleaded Mrs. Doran's will in bar of this suit; they have probated it here, and it is not contended that she has any property anywhere else in the state than in this county; and they have procured and recorded young Doran's deed to his interest in this very land.

If this construction were the true one it would leave Mrs. Doran's Illinois estate in the paradoxical position of paying her share of the six thousand five hundred dollar note on the Holmes county land, which no longer belonged to her or her heirs; perhaps the executor might plead failure of consideration and thereby escape.

The granting clause of the Cox deed, upon which counsel seek to put this construction, is in these words: "Do hereby convey, sell and warrant unto Jane R. Beale of Champaign, Illinois, an undivided one-fifth interest, and unto Florence Beale Doran and Ed. J. Beale, jointly, both of Champaign, Illinois, an undivided four-fifths interest in and to, etc."

The word "jointly" used in the deed has the manifest intention and purpose of indicating that the grantor had no intention of conveying four-fifths to each, which construction might have been placed on the clause in connection with the context; this construction would have been nonsense it is true, and not have affected the deed, but this indictment has been brought against lawyer's logic before Hamlet's time and since.

Our statute, section 2770, Code 1906, and the long expressed public policy of the state, is read into this deed and construes it as a conveyance in common; there is no hint in the whole tenor of this conveyance, or of this transaction, except the word "jointly," of any intended right of survivorship. As to the antiquity of this public policy see Bichols v. Denny, 8 George, 64.

We submit in view of the expressed public policy of the state that the word, "jointly," alone in this deed is not sufficient to create the right of survivorship, and that the conveyance is one in common.

Counsel contend in their seventh allegation that the land named in this bill cannot be partitioned until the encumbrance thereon is discharged. In this we think they are clearly mistaken; section 3525, Code 1906, confers this express jurisdiction and discretion on the chancery court. Furthermore, the bill seeks an apportionment of the encumbrance "if it can be had without impairing the security of the creditor." This surely is not demurrable. We submit that this objection to the bill was not well taken. Of defendants eighth ground of demurrer, it is sufficient to say that it is in direct conflict with the second, third, fourth and fifth grounds set up by them in this same demurrer.

I submit these objections as a complete answer by defendants to the eighth ground. The second, third, fourth, and fifth grounds of demurrer may be considered as one, since they present together the whole question in controversy.

In substance, they set up the claim that the husband (the complainant) takes only such interest in his deceased wife's land as is given him by the laws of her domicile, the state of Illinois; in other words, that the statutes of Illinois run, extra-territorially in Mississippi, to the exclusion of the laws of this state, the jurisdiction wherein the land is situated.

The chancellor in sustaining the demurrer declares, judicially, this to be a correct proposition of law, and the law of the state. If there is any authority for this position in the law of this state, or of Illinois, or any other common-law state, I have been unable to find it.

On the broad proposition, the universal rule is in opposition to the position of the counsel and the holding of the court. Blanchard v. Russell, 13 Mass. 4; Story on Conflict of Laws, S. C. 20; Laprice v. Gereaudeau, Walker, 483; Heirn v. Bridault, 8 George, 229; Garland v. Rowan, 2 Smedes & Marshall, 617.

As to personalty, the court adopts the general rule as set out in Story, and overrules the earlier case of Duncan v. Dick, Walker, 281, if that case be considered to support that doctrine. The court says further, as to personalty, page 629, "No authority is cited in support of the attempted distinction between a claim on a share of the personal estate made by the wife, or by a distributee. We have not been able to find any, unless it be the case in Walker. The various statutes of distribution seem to place the rights of the two classes on the same footing, and the elementary writers regard them in the same light, so far as the nature and character of their respective interests are concerned. The extent of the interest is another matter."

In Ball v. Phelan, 94 Miss. 339, a Tennessee will disposing of land in Mississippi, and which case is a monument to the industry and learning of both court and counsel, Judge WHITFIELD uses almost the language of Garland v. Rowan "The rules of interpretation and construction are very accurately set forth in 22 Am. & Eng. Ency. of Law (2 Ed.), p. 1366, et seq. The land in this case is in the state of Mississippi. Nothing can be better settled than that the title to real estate is governed solely by the law of...