Robertson v. Robertson

• Decision Date: 14 December 1908
• Docket Number: 13,554
• Court: Mississippi Supreme Court
• Parties: ELIZABETH ROBERTSON ET AL. v. JOHN G. ROBERTSON ET AL

47 So. 675

94 Miss. 645

ELIZABETH ROBERTSON ET AL. v. JOHN G. ROBERTSON ET AL

No. 13,554

Supreme Court of Mississippi

December 14, 1908

FROM the chancery court of Holmes county, HON. JAMES F. MCCOOL Chancellor.

Mrs Robertson, and others, appellants, were complainants in the court below; John G. Robertson and others, appellees, were defendants there. From a decree in defendant's favor complainants appealed to the supreme court.

William A. Robertson and Elizabeth Pool were married in 1865. They lived together for many years, and acquired property consisting principally of farm lands. In 1897, they, the husband then being eighty-one and his wife seventy-two years of age, and neither having a child or children, entered into the following written agreement:

"This agreement made this 27th day of October, 1897, between William A. Robertson and his wife, Elizabeth Robertson, of Holmes county, Mississippi, witnesseth: That we mutually agreed that during our lives any property that we now own or may hereafter acquire, shall, at the death of either, descend to the other for his or her life, that at the death of the survivor, all of said property shall be divided into two equal parts, half to descend and be inherited by the children of John G. Robertson, and the other half to descend and be inherited by the two nieces of Mrs. Elizabeth Robertson, Mrs Laura Cullifer, and Mrs. Sarah Anderson, who reside at Halifaxton, Halifax county, North Carolina. If we do not divide the lands into two equal parts during our life time then after the death of the survivor, Mr. John G. Robertson, or the guardian of his children, shall appoint one disinterested commissioner and Mrs. Cullifer and Mrs. Anderson shall appoint another disinterested commissioner and these two shall appoint a third and these three or a majority shall divide the land and personal property according to valuation and each set of heirs shall have the control and ownership of their half. If necessary for a fair and equal division, the commissioners may sell all or a part of the personal property and divide the proceeds, the report of the commissioners shall be entered of record and operate as a deed.

"It is mutually agreed that this instrument shall operate as a conveyance and as a will and that John G. Robertson is appointed as guardian of his children and executor of personal property subject to its division by commissioners as aforesaid.

Witness our signatures the day and year aforesaid.

"W. A. ROBERTSON.

"ELIZABETH X. ROBERTSON.

"Attest:--J B. HOUSE, JAMES J. SHANKS.

"State of Mississippi, Holmes County. Personally appeared before me, the undersigned justice of the peace, W. A. Robertson and his wife, Elizabeth Robertson, who severally acknowledged that they signed and delivered the foregoing instrument on the day and year therein named and in the presence of the attesting witnesses who signed the attestation in their presence.

"Witness my official signature this November 1st, 1897.

"W. H. PIERCE, Justice of the Peace."

Soon after the execution of this agreement, which had been properly recorded, Mr. Robertson died. Mrs. Robertson continued in the use and occupancy of the property for several years, and John G. Robertson, a nephew of her husband, managed her affairs. Afterwards the two nieces of Mrs. Robertson died, and some of their children came from North Carolina to live with her, and shortly after their arrival this suit was filed by Mrs. Robertson and her nieces' children against John G. Robertson and his children to cancel the agreement entered into between Mr. and Mrs. Robertson. The bill alleged that Mrs. Robertson believed she was executing a will which could be revoked by her at pleasure, and that, being an illiterate woman, she was ignorant of the effect of the agreement. The object of the bill was to revoke the agreement and cancel the title of John G. Robertson's children to a one-halif interest in the property so that the entire estate would, by operation of law, become vested in Mrs. Robertson, the widow of William A. Robertson, deceased.

Affirmed.

Tackett & Elmore, for appellants.

The instrument under discussion is a will. In construing an instrument of equivocal character, the purpose is to give the instrument that construction intended by the maker, as shown by the instrument itself and the circumstances surrounding its execution. Adopting this rule, in interpreting the instrument before us, an examination of the circumstances surrounding its execution shows that the parties who executed the instrument intended it as a will.

In the old case of Green v. Proud, 1 Mod. 117, 3 Keb. 310, the paper had striking characteristics of a deed; but the court said: "Here being directions to make a will and the person sent for with that end in purpose, this is a good will." Speaking of this case, Jarman (1 Bigelow's Ed.), 19, says: "The court seems to have been influenced by the circumstances that the person who prepared it was instructed to make a will."

Searching the instrument itself, for the intention of the parties, there is one feature which might be thought to operate against our contention; and that is, that the instrument was acknowledged and put upon record. But under the circumstances, that feature loses its force, for the reason that it appears that Mr. Robertson evidently believed that a will should be recorded.

In Cunningham v. Davis, 62 Miss. 266, Chief Justice Campbell held an instrument in the form of a deed, which was acknowledged before a justice of the peace and characterized in the writing itself as a "deed of conveyance" to be a will, showing that the acknowledgment amounts to nothing as against the testamentary intention. It would be especially so in this case, where the parties undoubtedly believed that a will should be placed on record.

The instrument itself says: "It shall operate as a conveyance and as a will." The designation of the instrument as a conveyance is not controlling, as shown by Cunningham v. Davis, above referred to. An ordinary will may be called a conveyance. In Meek v. Thornton, 36 Miss. 190, a will is referred to as "a form of conveyance." In Gould v. Mansfield (Mass.), 4 Am. Rep. 573, the court uses this language: "If we look at the character of the act to be done, we find that a will is considered in the nature of a conveyance by way of appointment." On account of the conflicting characteristics of a deed and a will, one instrument embracing both forms of conveyance, is certainly a novelty. There may be cases where the instrument operates as a deed and as a will. In such ca...