Simpson v. McGee

• Decision Date: 18 December 1916
• Citation: 73 So. 55,112 Miss. 344
• Court: Mississippi Supreme Court
• Parties: SIMPSON ET AL. v. MCGEE ET AL

73 So. 55

112 Miss. 344

SIMPSON ET AL. v. MCGEE ET AL

Supreme Court of Mississippi

December 18, 1916

October 1916

APPEAL from the chancery court of Newton county, HON. G. C. TANN Chancellor.

Suit by Monk Houston McGee and others against Julia Simpson and others. From a decree for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Byrd &amp Byrd, for appellants.

The only question to be determined by the court in this case is whether or not the instrument on page 16 of the record is a deed or a will. If it be a deed then the case should be affirmed; if a will then it should be reversed. We respectfully submit that it is a will. The clause in the instrument that determines its character is as follows "This to take effect only after the death of the said Harriet Houston."

In determining whether an instrument be a will or a deed, the question is, did the maker intend to convey any estate or interest whatever, to vest before her death and upon the execution of the instrument, or did she intend that all the interest and estate should take effect only after her death? If the former, it is a deed; if the latter, a will; and it is immaterial whether she called it a will or deed, the instrument will have operation according to it's legal effect. The instrument under consideration is in form a deed and acknowledged as a deed, yet it is clear from the terms of the instrument that it was not to take effect only after the death of the grantor, or the maker thereof. That being true all the authorities hold that it is testamentary in character and therefore cannot be upheld as a deed. The word "only" as used in this instrument determines its character: "This to take effect only after the death of the said Harriet Houston," the grantor. This test is upheld by every authority that we have been able to find on the subject. Delvin on Deeds (2 Ed.), sec. 855C; Wall v. Wall, 30 Miss. 91; Sartor v. Sartor, 39 Miss. 760; Cunningham v. Davis, 62 Miss. 366; McDaniel v. Johns, 45 Miss. 632.

Appellee, defendant in the lower court, filed a demurrer to plaintiff's bill to test the question as to whether the instrument sued on here was a will or a deed; the court overruled the demurrer which in our opinion was error. Thereupon an answer was filed and proof taken as shown by the record. If the acts and declarations of the maker of the instrument are to be taken into consideration in determining its character then the testimony in this record overwhelmingly shows that the maker of the instrument intended it to be a will. Some years after the execution thereof she made inquiries as to whether she could deed the property after she made a will and was advised that she could. She then, immediately thereafter, executed a warranty deed without any reservations whatever conveying the property to appellants.

We respectfully submit that the proof in this case has nothing whatever to do with the question at issue. The construction of the instrument alone is the question to be dealt with.

W. I. Munn, for appellee.

It is sought in the bill of complaint filed by the appellees in the chancery court of Newton county Mississippi, to cancel the deed made to appellee Julia Simpson also to cancel the two Hill deeds of trust. Appellants filed a demurrer to the bill of complaint, which was overruled, and the appellants were given sixty days in which to file an answer, the answer was filed out of time and after which testimony was taken and the case was submitted, on bill, answer, cross-bill, and proof, and a decree was rendered in favor of the appellee, granting the prayer of the bill. From the opinion of the chancellor the case comes to this court.

Now the instrument executed by Harriet Houston to the appellees on the 5th day of March, 1894, has all the earmarks of deed except the phrase, "to be and take effect only after the death of the said Harriet Houston." We think that there would be no difference if this clause read, "at the death of Harriet Houston." "At death" and "after death," are synonymous terms, and mean the same. This clause in the instrument is the only wording that is of a testamentary character, and all other parts of the instrument are of the nature of a deed; everything is certain and fixed.

When this document was executed and delivered it was placed beyond the control of the donor. No provision was made for revocation. Surely the donor Harriet Houston intended the document for a deed and not a will. She placed it beyond her reach when she executed and delivered it to the donees who immediately came into...