McRae v. Lowery

• Citation: 80 Miss. 47,31 So. 538
• Court: United States State Supreme Court of Mississippi
• Decision Date: 28 November 1901
• Parties: GEORGE W. MACRAE ET AL. v. PERRIN H. LOWREY ET AL

31 So. 538

80 Miss. 47

GEORGE W. MACRAE ET AL. v. PERRIN H. LOWREY ET AL

Supreme Court of Mississippi

November 28, 1901

FROM the chancery court of Quitman county. HON. A. McC. KIMBROUGH Chancellor.

Lowrey and another, appellees, were complainants in the court below Macrae and others, appellants, were defendants there.

Appellees filed their bill in this case in the chancery court, claiming that they were the owners by purchase from George W. Jamison of an undivided one-third interest in certain lands now in Quitman, but before the formation of that county, in Tunica county, and that defendants were claiming to be the owners of the entire interest in all of said lands by a title which was void and of no effect as to complainants, and casts a cloud on their title. The prayer of the bill was that the title of defendants be canceled as a cloud on complainants' title and that complainants' title to a one-third interest in the land be quieted and established. The defendants answered claiming title through William T. and Alfred H. Jamison, and denying that William E. Jamison, the father of George W., William T., and Alfred H. Jamison, ever had title, or was the owner of the lands at the time of his death. They also set up the statute of limitations of ten years, and estoppel of complainants to dispute their title. They made their answer a cross bill, and asked for the cancellation of complainants' deed as a cloud upon their title. The undisputed facts, so far as they are necessary to an understanding of the case, are as follows: In 1871 W. R. Cunningham sold to William E. Jamison and P. B. Cole, jointly, a large tract of land, including the land in controversy. He did not make them a joint deed, but they agreed on a partition of the property, and Cunningham made each a deed to the part which was allotted to him in said partition. The lands in controversy were deeded to Cole, and not to Jamison. This deed was made in 1872. In 1874 William E. Jamison filed a bill in the chancery court against the Levee Board (No. 1 ) to have canceled a claim of said board for the taxes for the year 1871 on all the lands purchased by him and Cole from Cunningham. This suit resulted in a decree fixing a lien on the lands for the taxes, and ordering the lands sold unless the taxes were paid by a day fixed. The taxes were not paid, and the commissioner sold the land under the decree, and it was purchased by one Waddell, July 8, 1875, and on the 19th day of the same month Waddell conveyed it by quitclaim deed to William E. Jamison. William E. Jamison died in October, 1875, leaving a will executed and dated April 3, 1872, the provisions of which are sufficiently set out in the opinion of the court. From a decree granting the relief prayed in the bill of complainants, defendants appealed.

Affirmed.

St. John Waddell, for appellants.

The language of the will is as follows "I give, devise and bequeath to my three sons, William T. Jamison, Alfred H. Jamison, and George W. Jamison, and to their heirs, all of my lands lying in the county of Tunica, state of Mississippi, known as the Morris place and the Cunningham place, containing in the aggregate about acres." . . .

This was a specific devise of specific property that the testator then owned at the time the will was written, and it was written and dated on April 3, 1872.

Ordinarily a will speaks from the date of the death of the testator, but in the case of specific devises, or devises of specific property, the will speaks as of the date it was written, so far as such devises are concerned; and in the case of a devise of specific property, parol evidence is admissible and competent to show the exact description and condition of the specific property devised, at the date the will was written. In other words, the property specifically devised is only the property owned by the testator at the date the will was written. Underhill on Wills, secs. 407 to 413, and 909 to 911.

Jamison's will contains the following clause, after disposing of specific property, to-wit:

"I also bequeath to my said wife, Margaret H. Jamison, the balance of my estate of whatever description, including the interest that may arise from the loan of the money that may be collected on my life policy," etc.

As to devises and bequests of this kind, the will speaks from the date of the death of the testator, which was in October, 1875, or after he had acquired whatever title he had to the lands in controversy, by virtue of the deed from V. B. Waddell. This being true, by the above clause in the will that title passed and became vested in Mrs. Margaret H. Jamison, the testator's widow, and she afterward, jointly with all of her other children, except George W., conveyed said lands to her two sons, William T. and Alfred H. Jamison. And William T. and Alfred H. Jamison afterward conveyed same by title bond to Isbell & Deaton, which was transferred by Isbell & Deaton to Sims, and by Sims to Porter & Macrae, the defendants.

This residuary clause in the will clearly carried with it whatever lands the testator acquired between the date of the will and his death. Underhill on Wills, secs. 60, 61, 62, 63, and 64.

P. H Lowrey, for appellees.

In this state, as in most of the other states, after-acquired lands can pass by will, and this being true, the same rule prevails in devises of land as in bequests of personalty, viz.: The will speaks from the death of the testator, and not from its date. 29 Am. & Eng. Enc. Law (1st ed.), 362, and note 3. And for a discussion of the identical question here, see...