Taylor v. Raby
| Decision Date | 11 May 1936 |
| Docket Number | 32247 |
| Citation | 175 Miss. 836,168 So. 59 |
| Court | Mississippi Supreme Court |
| Parties | TAYLOR v. RABY et al |
Suggestion Of Error Overruled June 8, 1936.
APPEAL from chancery court of Jackson county HON. D. M. RUSSELL Chancellor.
Suit by Fred Taylor, executor of the last will and testament of W. H Hill, deceased, against Earl H. Raby and others. From a decree dismissing the bill of complaint, the plaintiff appeals. Reversed and remanded.
Reversed and remanded.
H. W. Gautier, of Pascagoula, for appellant.
This court in previous decisions has held that the construction or the determination as to whether or not a writing is testamentary or of the character of a deed depends upon the facts of the particular case or the intention of the party as construed from the words of the instrument. That is, that each case must be considered in its own light and must stand on its own bottom.
Schauff v. Schauff, 11 A. L. R. 15.
Beginning back with the old case of Wall v. Wall, 30 Miss. 91, and Sartor v. Sartor, 39 Miss. 760, this court held that the style of an instrument or the name that the party gives to it does not fix its character but that the construction and determination of the character of an instrument as to whether it is a deed or a will, rests on the time of the vesting of an interest in the subject matter in the party to be benefited. If there is vested in the grantee a present interest in property, though the possession is to be deferred until the death of grantor the instrument, is construed as a deed. If, however, the instrument is to take effect at the death of the grantor, even though it has the wording of a deed, it is to be construed as a will.
Cunningham v. Davis, 62 Miss. 366; Cox v. Reed, 74 So. 330; Simpson v. McGee, 73 So. 55; Knight v. Knight, 97 So. 481.
Did any interest in Hill's personal money vest in the appellees? Was any delivery of said money or property made to the appellees? We emphasize, certainly not. And if the court agrees with us on this contention, and we are confident that this court will do so, then that clause of the instrument did not constitute a deed and must fail, but it had a testamentary character and must likewise fail, because not properly executed as a will. and for the further reason that it was revoked, as Hill had a right to do as far as his personal money was concerned by the execution of his subsequent will exhibited to the bill of complaint.
Stubblefield v. Hayward, 86 So. 295.
H. P. Heidelberg, of Pascagoula, for appellees.
We submit that for a construction of the contract under date of August 18, 1934, that in an instrument of this kind, that while they speak for themselves, yet they must be construed as of the time of execution to determine whether or not they are contractual or testamentary, and to determine which of these catagories they fall into, and that further its character cannot, or rather should not be changed by the court, except upon convincing proof or where such instrument is absolutely in conflict with some protective statute or as a matter of public policy.
Savage v. Bonair Coal Co., 2 Tenn. Ch. App. 594; Thompson v. Thompson, 279 Ill. 54, 8 L. R. A. (N. S.) 1130; Wall v. Wall, 30 Miss. 91; Excum v. Canty, 34: Miss. 569; McWillie v. Van Vacter, 35 Miss. 449; McDaniel v. Johns, 45 Miss. 643; Shaull v. Shaull, 182 Iowa 777, 11 A. L. R. 15.
It seems to be the rule that in determining whether an instrument is a contract or a will the dominant purpose of the maker as manifested therein must control.
In re Fuheman, 244 N.W. 628, 209 Wisc. 218; Beysehlog Estate, 231 N.W. 162, 201 Wisc. 613; Cowleys Estate, 136 Penn. 628, 10 L. R. A. 93; Craft v. Moon, 201 Ala. 14, 75 So. 202; Shaull v. Shaull, 11 A. L. R. 15; Seay v. Higgins, 70 So. 113; Sartor v. Sartor, 39 Miss. 760.
It further appears that in an early Mississippi case, Harrington v. Bradford, Walker (Mississippi) 520, in as much as delivery is requisite to the validity of a deed, but not of wills, the fact that an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the grantor, is delivered to constitute additional evidence that the maker intended the instrument to pass a present interest thereto, constitutes a deed.
Another rule seems to be in such cases that when the paper on its face is unequivocal, the presumption is against its operating as testamentary unless it is made dearly to appear that it was animus testandi, where being intended by the maker to operate a posthumous disposition of his estate.
Abney v. Moore, 18 So. 60, 106 Ala. 131; Pentoco v. Hays, 75 Kans. 76, 9 L. R. A. (N. S.) 224.
Where an instrument in the form of a deed containing a provision postponing its taking effect until after the death of the maker, is not attested as required of wills, it is ascertained that the maker intended the instrument to pass a present interest.
Collier v. Carter, 146 Ga. 476, 11 A. L. R. 1; Wall v. Wall, 30 Miss. 91; Sartor v. Sartor, 39 Miss. 760; McDaniel v. Johns, 45 Miss. 632; Exum v. Canty, 34 Miss. 533; Edwards v. Smith, 35 Miss. 197; Cunningham v. Davis 62 Miss. 366; Brenson v. Sandifer, 42 So. 89, 90 Miss. 38; Rogers v. Rogers, 43 So. 434; Myers v. Viverett, 70 So. 449, 110 Miss. 334; Simpson v. Megee, 73 So. 55, 112 Miss. 344; Cox v. Reed, 74 So. 330, 113 Miss. 488; Morgan v. Haywood, 76 So. 262, 115 Miss. 354; Kelly v. Covington, 81 So. 485, 119 Miss. 658; Knight v. Knight, 97 So. 481, 133 Miss. 74.
In the case at bar, the appellees herein had at the time of the signing of the contract a present and tangible interest in all of the property at the time the contract was made, and they granted to Hill the right of use and disposition thereof during his lifetime, providing that they (the appellees) did not interfere with the bank in the administration of the trust fund.
Johnson v. Seeley, 103 So. 499, 139 Miss. 60; Graham v. Tripplett, 114 So. 621, 148 Miss. 299; Simpson v. Megee, 73 So. 55, 112 Miss. 344.
We submit that from the reading of the instrument, in the case at bar, and the relation of the circumstances and conditions as outlined in the instrument, it makes clear the intention and purpose of all the parties thereto, and that the instrument in the case at bar needs no explanation or states no difficulty to construe the intention of all of the parties thereto. It was a settlement as between them of the property of the mother of these appellees and of the now deceased W. H. Hill, and that the circumstances and conditions leading up to what brought it about, and the intentions of all of the parties is made clearly manifest from the reading of the instrument, and that the intention and purpose of the parties thereto is made manifestly plain.
Hagan v. Hagan, 161 N.W. 380, L. R. A. 1917C 964; Scharnick v. Scharnick, 220 P. 397, 31 A. L. R. 159; Silney v. Cornier, 139 A. 665; Fuhrmann's Will, 244 N.W. 628; Hunt v. Hunt, 119 Ky. 39, 7 Am. & Eng. Ann. Cas. 788.
A deed delivered and recorded in obedience to direction by one to whom it was delivered in escrow conveying land to one and the heirs and assigns passes tittle although it provides that it is to take effect immediately upon the death of the grantor.
Shaull v. Shaull, 182 Iowa 777, 116 N.W. 301, 11 A. L. R. 15.
This is an appeal from a decree of the chancery court of Jackson county sustaining a demurrer to, and finally dismissing, the bill of complaint filed by the executor of the last will and testament of W. H. Hill, deceased, against the heirs at law of Mrs. Alice E. Hill, deceased, and the Merchants & Marine Bank of Pascagoula, Miss.
The bill of complaint and exhibits thereto show the following facts: In the year 1908, after the execution of an antenuptial agreement between them, dealing with their separate properties, the testator, W. H. Hill, was married to Mrs. Alice E. Hill, who was then the mother of four children by a former marriage. These parties lived together as husband and wife from the date of their marriage until the death of the wife on August 7, 1934, during which time they accumulated considerable property, consisting of real estate and cash on deposit in the defendant bank, and the separate property mentioned in the antenuptial agreement became commingled. Shortly after the death of Mrs. Hill, her children and the said W. H. Hill entered into a contract for the recited purpose of finally and fully settling and determining the interest of the said W. H. Hill in the estate of his deceased wife as heir at law, and finally determining his separate interest; in...
To continue reading
Request your trial