Seab v. Seab, 44562

• Decision Date: 23 October 1967
• Docket Number: No. 44562,44562
• Citation: 203 So.2d 478
• Parties: James C. SEAB et al. v. Alliece P. SEAB et al.
• Court: Mississippi Supreme Court

Page 478

203 So.2d 478

James C. SEAB et al. v. Alliece P. SEAB et al.

No. 44562.

Supreme Court of Mississippi.

Oct. 23, 1967.

William F. Riley, Natchez, McGehee, McGehee & Torrey, Meadville, for appellants.

S. P. Torrey, Meadville, Roach, McMillan & Roach, McComb, for appellees.

JONES, Justice:

This case, which comes from the Chancery Court of Franklin County, Mississippi, sought the cancellation of a will and of a deed. The chancellor, after hearing evidence, held the will invalid but dismissed the bill as to the deed. We affirm.

In 1923 J. D. Seab acquired certain land by deed recorded in Book N-4 at page 416 of the deed records of the county, and in 1924 by deed recorded in Book G-3, page 138 of said records, conveyed same to his wife, Mrs. F. E. Seab. Other than to say the lands were the homestead and comprised 87 acres more or less, further description thereof is omitted.

F. E. Seab and J. D. Seab on May 22, 1948, executed an instrument purporting to be their last will and testament. Thereby they undertook to will, devise and bequeath the surface of the lands to their son, Howard A. Seab, and divide the minerals equally between their children, including Howard A. Seab. This instrument was not witnessed by two subscribing witnesses as required by Mississippi Code 1942 Annotated section 657 (1956), and could not be and was not wholly in the handwriting of each; neither was it wholly in the handwriting of either. It was acknowledged before a member of the Board of Supervisors, filed for record and recorded in the will books of Franklin County, Mississippi. The said will was invalid as not executed in accordance with the laws of our state, and the chancellor properly so held. Attention is here called to its provisions for comparison with the deed which was sought to be cancelled.

On January 6, 1955, after the death of her husband (who died in 1953), Mrs. F. E. Seab executed a deed conveying to her son, Howard A. Seab, the surface of the lands hereinbefore mentioned, but providing that the grantor should have 'custody' of the lands till her death and that her other children should share equally with her son, Howard A. Seab, in division of all oil royalty from the land. This deed was not recorded until June 16, 1962, after the death of Mrs. Seab, which occurred on or about June 4, 1962.

The deed was sought to be cancelled on the ground there had been no delivery thereof during the lifetime of Mrs. Seab but that it had been found among er effects after her death.

At the time of the death of his mother and apparently all his life, the son, Howard A. Seab, was living and had lived in the home with his father and mother and, after the death of his father, with his mother. All children except Howard were married with families. He did not marry until after his mother's death. He died July 23, 1964, leaving as his sole heirs his widow and one small child. This suit was not filed until after his death, although the deed was filed for record in June 1962. The suit was filed by his sisters and brother, the other heirs of the said Mrs. Seab, except Laura Seab Ikerd, who did not join but was appointed as guardian of Howard's son. The defendants were the widow and child of Howard, together with Mrs. Ikerd, individually, and as guardian.

The defendants answered the bill of complaint denying there was no delivery of the deed but affirmatively alleging delivery during Mrs. Seab's lifetime.

Complainants charged that after the death of Mrs. Seab some of the complainants going through the trunk of Mrs. Seab found the deed and delivered it then to Howard Seab. They relied upon a presumption of nondelivery, arising from the finding of the deed in the trunk of the mother after her death.

The defendants' answer neither admitted nor denied the allegation as to the deed being found in the trunk of the said Mrs. Seab, but specifically denied that it was never delivered during her lifetime.

On the hearing before the chancellor a man and his wife who had worked for the Seabs for more than 30 years testified that this trunk was in the hall (not in Mrs. Seab's room) and that they saw one of the complainants open the trunk, pick out a paper, and hand it to Howard Seab, saying, 'This is Mama's...