Peebles v. Rodgers

• Decision Date: 19 February 1951
• Docket Number: No. 37830,37830
• Parties: PEEBLES v. RODGERS.
• Court: Mississippi Supreme Court

Page 632

50 So.2d 632

211 Miss. 8

PEEBLES v. RODGERS.

No. 37830.

Supreme Court of Mississippi, Division A.

Feb. 19, 1951.

O. M. Oates, Bay Springs, for appellant.

McFarland & McFarland, Bay Springs, for appellee.

McGEHEE, Chief Justice.

This appeal involves the construction of an instrument which is in the form of a deed but which contains the following provision: 'This deed is intended to convey all lands I now own. It is distinctly understood and agreed that grantor, is to live on, use, control, possess etc. the above described property during my lifetime, and at my death, this deed to take effect and title to vest in grantee.'

It is contended by the appellant, Ella Katherine Peebles, a granddaughter of the signer of the instrument, that the same is not a deed in that it conveys no interest in the lands in praesenti, and that it is not sufficient as a will in that it contains no such words as 'give', 'devise' and 'bequeath', or other language showing an intention of the signer to make a will, and is not attested by two witnesses in the manner required by Section 657, Code 1942. That section provides, among other things, in regard to the execution of a will that: '* * * if not wholly written and subscribed by himself or herself, it shall be attested by two or more credible witnesses in the presence of the testator or testatrix.'

The signer of the instrument in question, F. D. Fail, who died some time during the year 1936, left surviving him a son, D. L. Fail, and a daughter, Robbie Fail, who is now the appellee Robbie Fail Rodgers. He also left surviving him a granddaughter, the appellant, Ella Katherine Peebles, as the only surviving heir at law of a deceased daughter. The surviving son and daughter filed this suit to obtain a construction of the instrument in question, and asked that in the event the Court should hold that the instrument is sufficient as a deed to convey the title to his daughter Robbie Fail her title be quieted and confirmed as against the defendant Ella Katherine Peebles, but that in the event the Court should hold the same to be testamentary in character and a will, that the same be admitted for probate in solemn form, etc. The bill of complain also prayed for general relief, and the complainant therein was joined by her brother, D. L. Fail.

The bill of complaint alleged the relationship of the parties to F. D. Fail, deceased, that he was above the age of twenty-one years, was of sound and disposing mind and memory, and that the said instrument was executed as his own free and voluntary act and deed, and that he thereby attempted to convey to Robbie Fail, as grantee therein, the fee simple title to the lands described in the instrument aggregating approximately seventy acres, and which constituted the farm of the signer thereof. It was further alleged that the purported grantee lived with the purported grantor 'for all of his lifetime and until his death.'

The instrument recites that 'In consideration of $1.00 and the natural love and affection I have for my daughter Robbie Fail, I convey and Warrant to Robbie Fail the land described as (describing the land and stating the location thereof) * * *'. And then follows the provision hereinbefore quoted.

The instrument was filed for record on November 24, 1936, but it does not appear whether the same was so filed prior or subsequent to the death of F. D. Fail.

It was witnessed by R. W. Tyner, as such, and was acknowledged on the same day before Georgia Terral, the deputy clerk of T. Q. Brame, chancery clerk of Jasper County, Mississippi.

It was held in the case of Bolton v. Bolton, 107 Miss. 84, 64 So. 967, that where, when a will was executed, there were present the testator and two witnesses and one of the witnesses signed with the testator and the other witness took the acknowledgment at the request of the testator, the will in such case was sufficiently attested.

Again, in the case of Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188, the notary public before whom the paper was then and there acknowledged became, in law, also a witness; citing Bolton v. Bolton, supra. In that case the paper was signed by two witnesses, and was then and there also acknowledged by the notary public, but the notary was nevertheless held to have been also a witness. We are therefore of the opinion that if the instrument here in question is sufficiently testamentary in character as to constitute a will, if properly attested, the same would meet the requirements of a valid will in the instant case, and would be entitled to admission to probate upon proper proof being made that both R. W. Tyner and the deputy clerk before whom the acknowledgment was taken, know that the same was executed by F. D. Fail, from the facts and circumstances which transpired at the time of its execution, and if the proof otherwise meets the requirement that he then possessed the necessary testamentary capacity.

To hold that the instrument here involved is sufficient to constitute a will instead of a deed, it is necessary to distinguish the present case from that of Watts v. Watts, 198 Miss. 246, 22 So.2d 625. In the report of that case, the instrument there in question is fully set forth in the reporter's note to the case. It is sufficient to say that it is in all respects the same as the instrument now before us except that the controlling provision thereof reads, as...