Thomas v. Byrd

• Decision Date: 06 November 1916
• Docket Number: 17850
• Citation: 73 So. 725,112 Miss. 692
• Court: Mississippi Supreme Court
• Parties: THOMAS et al. v. BYRD et al

73 So. 725

112 Miss. 692

THOMAS et al. v. BYRD et al

No. 17850

Supreme Court of Mississippi

November 6, 1916

Division A

Appeal from the Chancery court of Sunflower county, HON. E. N THOMAS, Chancellor.

Suit to quiet title by James W. Byrd and another against Mabel C Thomas and others. From a decree for complainants, defendants appeal.

James W. Byrd, August B. Byrd, and William G. Byrd, three brothers all of whom were unmarried at the time of the execution of the instrument which forms the basis of this suit, were engaged in the planting business. James W. Byrd and Augustus B. Byrd were the owners as tenants in common of the land and personal property involved in this suit. Prior to the execution of this contract William G. Byrd had advanced some money to the other two brothers which was used in the improvement and operation of the plantation. All of them seem to have taken whatever money was necessary for their personal expenses out of the business without keeping any account among themselves. After the execution of the instrument referred to Augustus B. Byrd married and subsequently died leaving as his heirs at law his widow, Mabel C. Byrd, and an infant child, James W. Byrd, Jr. At the time of his death Augustus B. Byrd owned an undivided half interest in the property involved in this suit, and his widow and child claim it as his sole surviving heirs. The two surviving brothers, James W. Byrd and William G. Byrd, claim exclusive title to this property under the instrument hereinafter set out, and they brought this suit to quiet and confirm their title to same and cancel the claim of the widow and son of their deceased brother, Augustus B. Byrd.

The defense interposed by the widow and son was that the instrument was testamentary in character and ineffectual to pass title to the property of Augustus B. Byrd, deceased, either as a deed or a contract, and that inasmuch as it was not executed and attested as required by section 5078 of the Code of 1906, which provides that a will "if not wholly written and subscribed by the testator shall be attested by two or more credible witnesses in the presence of the testator," that therefore the property of Augustus B. Byrd passed to his widow and son by descent. On final hearing the court construed the instrument as a deed or contract, and not as testamentary, and rendered a decree confirming the title of complainants and canceling the claim of the widow and son thereto. From this decree the widow (who had subsequently married a man named Thomas) and her infant son prosecuted this appeal.

The instrument (Exhibit A) referred to in the opinion is as follows:

J. W. Byrd et al. to W. G. Byrd.

This contract and agreement, made and entered into this the 21st day of March, A. D. 1907, by and between James W. Byrd, Augustus B. Byrd, and William G. Byrd, all of whom reside at or near Isola, in the county of Washington, state of Mississippi, witnesseth: That whereas, all of the parties to this contract are interested in certain farming and stock-raising business now being conducted on lands owned by the undersigned James W. Byrd and Augustus B. Byrd: and whereas, we each are desirous that said business shall be continued and conducted as it is now being conducted, in the event that any of us should die without such business being interfered with, or in any manner suspended or litigated in the event of the death of any of the parties:

Now, therefore, this agreement and contract witnesseth that in the event that the said Augustus B. Byrd and William G. Byrd should survive the said James W. Byrd, then the entire right, title and interest of the said James W. Byrd in all lands and other property now owned by the said James W. Byrd shall become the property of the said Augustus and William G. Byrd, who shall hold the same by fee-simple title, subject only to the personal debts of the said James W. Byrd, and should the said James W. Byrd and William G. Byrd survive the said Augustus B. Byrd, then all the right, title, and interest of the said Augustus in all lands and personal property, wheresoever situated, shall become the property of the said James W. Byrd and William G. Byrd who shall hold the same in fee simple, subject only to the individual debts of the said Augustus B. Byrd. Should the said Augustus B. Byrd and James W. Byrd survive the said William G. Byrd, then all the property, real or personal and mixed, wheresoever situated, owned by the said William G. Byrd, at the time of his death, shall become the property of the said James W. Byrd and Augustus B. Byrd, who shall hold the same in fee simple, subject only to the personal debts of the said William G. Byrd; and in the event of the death of any two of the parties to this contract, no matter when or how occurring, then the survivor shall become seised and possessed in fee simple of all the right, title, and interest of all the property, real or personal and mixed, which may have been owned by either jointly or severally, or by either or both of such deceased parties, subject, however, to the individual debts of such deceased party or parties; it being our intention by this contract and agreement that all of the property now held or owned either jointly or severally by the several parties to this contract shall become the property of the surviving parties, or party, whenever either or any of the parties hereto shall die, and that the business now being conducted by us shall be continued without change of the same, or without liquidation or suspension, in that same manner as if one of the said parties had died, and just as if they were all living as at this time.

Witness our signatures this the 21st day of March, 1907.

James W. Byrd.

Augustus B. Byrd.

William G. Byrd.

State of Mississippi, County of Washington, town of Isola.

This day personally appeared before the undersigned, notary public in and for the Fifth supervisor district, county of Washington and state of Mississippi, James W. Byrd, Augustus B. Byrd, and William G. Byrd, who each acknowledged that they signed and delivered the foregoing instrument of writing on the day and year therein mentioned and for the purposes therein expressed, as their own joint and several act and deed.

Given under my hand and seal of office this the 21st day of March, A. D. 1907.

[Seal.]

O. T. EDDLEMAN, N. P.

State of Mississippi, Sunflower County.

I certify that the foregoing instrument was filed for record in my office at 9 o'clock a. m. on the 22d day of March, 1907, and was duly recorded on the 22d day of March, 1907. W. P. Gresham, Clerk, F. B. McKee, D. C.

[Seal.]

Book F--3, page 266.

Filed this the 16th day of February, 1912. A. P. Stubblefield, Chancery Clerk, by L. M. Watts, Deputy Clerk.

Reversed and remanded.

Campbell & Cashin and S.D. Neil, for appellants.

If the instrument of writing presented by this record had been signed by only one of the parties, instead of by all three of them, and it spoke the same language that this jointly executed instrument speaks, it would doubtless have been construed by the court below as testamentary in its nature, and ineffectual for want of proper execution and probate; for every word in it, after reciting the preamble, as applied to each of the signers thereof, relates to the future and unequivocally shows that its provisions are not to be operative, except in the event of the death of each of said parties.

The fact that the instrument is in the form of a contract, and was signed by more than one party, does not prevent it from operating as testamentary in its nature; for, it is well established, especially by the more modern authorities, that an instrument in writing executed by several parties, may operate, and will operate, according to its terms, as a joint will, or a mutual and reciprocal will, or as the several will of the parties.

40 Cyc. page 2110, et seq; Crawley's Appeal, 10 L. R. A. 91; Note to Ferris v. Neville, 89 Am. St. Rep. 493; Note to Robertson v. Robertson, 136 Am. St. Rep. 592. In determining whether an instrument be a deed or a will, the main question is: Does the instrument, regardless of its form, and regardless of the number who sign it, pass a present interest? If it does, it is a deed; otherwise, it is not. Jones v. Jones, 16 Am. Dec. 35, and notes; Babb v. Harrison, 70 Am. Dec. 203; Burlington University v. Barrett, 92 Am. Dec. 383, and notes; Wilson v. Carrico, 49 Am. St. Rep. 213, and notes; 12 Cyc., page 521; 40 Cyc., page 1084; Wall v. Wall, 30 Miss. 91; Exum, et al. v. Canty, et al., 34 Miss. 533; Sartor v. Sartor, 39 Miss. 760; McDaniel v. Johns, 45 Miss. 632; Cunningham v. Davis, 62 Miss. 366; Devlin on Deeds (3 Ed.), sec. 854; and many other authorities that could be cited.

In Wall v. Wall, ubi supra, it is said: "The determination of the legal character of instruments of this kind depends mainly upon the question whether the maker intended to convey any estate or interest to vest before his death, and upon the execution of the paper, or, on the other hand, whether all interest and estate whatever, were to take effect only after his death. For the most part, that is governed by the provisions of the instrument, which may be sometimes aided by the concurrent circumstances of its execution; and the rule is well established that whatever may be the form of the instrument or the circumstances of its execution and delivery, if, upon the whole, the intention was that it should have only a future operation after death, it must be held to be a will. And in such case, it is immaterial whether the maker call it a deed or a will; for it must, nevertheless, have that effect which the law gives to it."

The test by which to determine whether a given instrument is a deed or a will,...