Kyle v. Wood, 40129

• Decision Date: 23 April 1956
• Docket Number: No. 40129,40129
• Citation: 227 Miss. 717,86 So.2d 881
• Parties: O. T. KYLE v. Joe E. WOOD and Ethel Wood.
• Court: Mississippi Supreme Court

Page 881

86 So.2d 881

227 Miss. 717

O. T. KYLE v. Joe E. WOOD and Ethel Wood.

No. 40129.

Supreme Court of Mississippi.

April 23, 1956.

Stone & Stone, Coffeeville, for appellant.

John P. Horan, Water Valley, for appellees.

KYLE, Justice.

The appellant O. T. Kyle, complainant in the court below, filed his original bill of complaint in the Chancery Court of Yalobusha County against the appellees, Joe E. Wood and Mrs. Ethel Wood, defendants, alleging that he was the owner of an undivided one-half interest in approximately 200 acres of land in Yalobusha County, fully described in the bill of complaint, and that the appellees, Joe E. Wood and Mrs. Ethel Wood, were the owners of the remaining undivided one-half interest in the land, and in his bill the appellant asked for a partition sale of the land for a division of proceeds among the cotenants according to their respective interests. In his bill the appellant alleged that he had acquired title to the undivided one-half interest in the land by the last will and testament of J. A. Wood, deceased, who was the owner of the undivided one-half interest at the time of his death. The appellant alleged in his bill that the above mentioned undivided one-half interest in the land had been devised to him as remainderman after the death of Mrs. Molly Wood, the wife of the testator to whom the testator had devised a life estate.

The appellees in their answer denied that the appellant was the owner of an undivided one-half interest in the 200 acres of land, or any part thereof. And the appellees averred in their answer that J. A. Wood, by his will, had devised and bequeathed all of his property of every kind to his wife, Mrs. Molly Wood, 'to have and to hold during her lifetime, and to use, sell and dispose of as she sees fit;' and that Mrs. Molly Wood, after the death of the testator, had sold and conveyed the undivided one-half interest in the 200 acres of land, which her husband had owned at the time of his death, to the appellees, and that the deed executed by her conveyed to the appellees a fee simple title to the undivided one-half interest in the land, and that the appellant owned no interest in the land.

The cause was heard by the chancellor upon the pleadings, the record evidence and an agreed stipulation as to the facts.

The record shows that J. A. Wood died on April 27, 1952, and that he was the owner of an undivided one-half interest in the above mentioned 200 acres of land at the time of his death. He left surviving him his wife, Mrs. Molly Wood, but he left no children. His last will and testament was duly admitted to probate by a decree of the chancery court of Yalobusha County on May 24, 1952. The will which was dated September 18, 1948, is in words and figures as follows:

'State of Mississippi

County of Yalobusha

'I, J. A. Wood, of Yalobusha County, Mississippi, being above the age of 21 years, and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament.

'I will and give all my property of every kind wherever located to my beloved wife, Mrs. Molly Wood, to have to hold during her life time to use, sell and dispose of as she sees fit; and at her death, then such property left to my said wife by me is to be given to my nephew, by marriage, Arthur Kyle.

'And I name and appoint Everett Brooks, the executor of this my last will and testament, and direct that he be not required to give bond, the bond being by me waived.

'In witness whereof, I do sign and execute this and do declare the same to be my last will and testament, this the 18th day of September, 1948.

's/s J. A. Wood

'Witnesses:

's/s Wayne B. Williamson

's/s Thurman Brooks'.

The record shows that on October 8, 1952, Mrs. Molly Wood executed and delivered to Joe E. Wood and his wife, Mrs. Ethel Wood, a warranty deed conveying to them the undivided one-half interest in the above mentioned 200 acres of land, which had been left to her by her husband. The consideration recited in the deed was $2,200, paid in cash. On February 2, 1953, Mrs. Molly Wood executed and delivered to the grantees a correction deed for the purpose of correcting an error in the description of the land which she had undertaken to convey to them in the deed dated October 8, 1952. The record does not show the exact date of Mrs. Wood's death.

The chancellor found that by the terms of the will Mrs. Molly Wood was invested with the power to sell and convey the property devised and bequeathed to her, and that the deed of conveyance executed by her to Joe E. Wood and his wife, Mrs. Ethel Wood, conveyed to the grantees a valid fee simple title to the undivided one-half interest in the 200 acres of land, and that the appellant owned no interest in the land. And the chancellor entered a decree dismissing the appellant's bill. From that decree the appellant has prosecuted this appeal.

Only one question is presented for our decision, and that is, whether the deed executed by Mrs. Molly Wood to the appellees on October 8, 1952, and the correction deed executed by her on February 2, 1953, conveyed to the appellees a valid fee simple title to the undivided one- half interest in the land which was owned by J. A. Wood at the time of his death.

We think that question must be answered in the affirmative.

The estate devised to Mrs. Wood by the will of her deceased husband was an estate for life, with the power to sell and dispose of the property as she saw fit. The power to sell and dispose of the property carried with it authority to convey the full interest in the land owned by the testator at the time of his death, which was an undivided one-half interest in fee simple; and the warranty deeds executed by Mrs. Wood to the appellees conveyed that interest to the grantees.

The courts generally hold that where the testator devises his estate to a life tenant with a remainder over, and then gives the life tenant absolute power and authority to dispose of his whole estate, the exercise of such power by the life tenant by conveying the property to other persons during his life carries the fee and defeats the right of the remaindermen. Rail v. Dotson, 14 Smedes & M. 176; Andrews v. Brumfield, 32 Miss. 107; Warren v. Ingram, 96 Miss. 438, 51 So. 888; Murdoch v. Murdoch, 97 Miss. 690, 53 So. 684; Archer v. Palmer, 112 Ark. 527, 167 S.W. 99, Ann.Cas.1916B, 573; Reddin v. Cottrell, 178 Ark. 1178, 13 S.W.2d 813; Bussone v. Marsh, 140 Or. 331, 12 P.2d 329; Steiff v. Seibert, 128 Iowa 746, 105 N.W. 328, 6 L.R.A.,N.S., 1186.

'A general power to sell, without restriction as to either purpose or grantee, leaves the donee of the power free to sell and do as he wishes with the proceeds, without responsibility to anyone, even though the donee of the power has a life estate and there is a gift over of the remainder. This has been held true even though the sale may have been made for the purpose of defeating the remainder.

'In the absence of limitation, power to sell or dispose of property carries authority to transmit the full quantum of the estate held by the donor, usually a fee simple interest.' 3 Page on Wills, pp. 868, 869, Sec. 1320.

In the case of Andrews v. Brumfield, 32 Miss. 107, the Court held that a devise to one for life, with directions that the property shall be delivered to the legatee as soon after the testator's death as possible, 'that she may have full control of the same, and be empowered to dispose of the same as she may think proper,' vested in the devisee an estate for life only, but with an unrestricted power of disposing of the fee.

In its opinion in that case the Court said 'In the first and second clauses of the will, the property bequeathed to Mrs. Andrews, is limited to her, expressly, for the term of her natural life. The language is too plain to admit of the least doubt as to the intention. Hence, if the will contained no other provision, it could not be questioned that only a life estate was given to her. But by the seventh clause, in which the testator declares it to be his will, that all the property given to Mrs. Andrews by the 1st and 2nd clauses, 'shall be delivered into her possession as soon after (his) death as possible; that she may have full control of the same, and be empowered to dispose of the same as she may think proper,' it is insisted that this result has been changed. We think that this language admits of but one construction. It appears, manifestly, to have been the testator's intention to confer an unrestricted power of disposition. Taking all of the claims together, as disclosing the testator's intention, they show, first, that the property was given for life, and secondly, that the legatee should possess the power to sell, give or transfer to whomsoever she might elect.'

In the case of Warren v. Ingram, 96 Miss. 438, 51 So. 888, the Court held that, where a testator had devised lands to his wife, "to have and to hold during...