West v. West

• Decision Date: 16 April 1923
• Docket Number: 23092
• Citation: 95 So. 739,131 Miss. 880
• Court: Mississippi Supreme Court
• Parties: WEST v. WEST

95 So. 739

131 Miss. 880

WEST v. WEST

No. 23092

Supreme Court of Mississippi

April 16, 1923

1 WILLS. Husband administering estate as executor of wife estopped to assert title to land belonging to him devised thereby.

Where a testatrix in her will devises and bequeaths real and personal property belonging to her husband, and also devises real property belonging to her husband to a third party, and the husband is appointed executor of the will, and is also a subscribing witness to it, and the husband proves the will as subscribing witness, takes out letters testamentary qualifies as executor, and administers the estate, he thereby elects to take the property devised them under the will, and must see that the other devisees get the property devised them. By these acts he is estopped to assert title to the land belonging to him devised by the will.

2 WILLS. Husband must renounce wife's will and refuse qualification as executor if he would keep own property devised thereunder.

Had he desired to keep his own property devised by this will, it was his duty to have renounced the will, and he should not have qualified as executor thereunder.

3 WILLS. Husband qualifying as executor under wife's will and taking thereunder estopped to claim own land devised though devised to subscribing witness necessary to prove will void.

Where the husband qualified as executor under this will, and administered the estate, he is estopped to claim title to this land despite the fact that section 2001, Code of 1906 (section 1666, Hemingway's Code), provides that a devise to a subscribing witness whose testimony is necessary to prove a will be void. In this case this section was not invoked, and the husband took the bequests and devises under the will.

4. WILLS. Party taking benefits under a will precluded from attacking validity thereof.

Where a party takes the benefits or provisions in his favor under a will, he is thereby precluded from at the same time attacking the validity of the bequests and devises to him.

HON. G. E. WILLIAMS, Chancellor.

APPEAL from chancery court of Bolivar county, HON. G. E. WILLIAMS, Chancellor.

Suit by Robert H. West against Lula E. West. From a decree for defendant plaintiff appeals. Reversed and remanded.

Decree reversed and cause remanded.

Shands, Elmore & Causey, for appellant.

We say that the doctrine of election applies with full force, to the act of William when he presented the will for probate and qualified as executor of the estate. The letters testamentary issued by William, and the orders of the court directing that such letters issue to him show that he had theretofore presented the will for probate, and that such instrument was the true last will and testament of Angeline. The letters show that William had theretofore complied with the statutes of Mississippi in making probate of the will. So then, William followed the terms of the will, and complied with the statutes which require that he shall take before the letters are issued to him, on oath, that he "will well and truly execute the same (the Will) according to its tenor, and discharge the duties required by law." Letters testamentary could not have been issued to him by the court until the statutory oath had been taken by him. We thus see that we have an executor who has qualified as the law directs, and as the will provides, and has had the letters issued to him, who thereafter disregards the trust imposed in him, and does not execute the will according to its tenor, but disregards the wishes of his testator, and converts to his own use and benefit, not only the property devised to him in the will but the property therein devised to other persons.

The question which arises is this: Will the court permit an executor, whose duty it is to execute the will according to its tenor and who obtains possession of the property, by an order of the court, to take the property which he holds in trust and as an officer of the court, and convert the property to his own use? An executor is never forced by law to assume the duties of this office; he may refuse to qualify, or he may renounce his right to hold such office, and the statutes then authorize and direct the court to appoint such other persons who may qualify, so that the trust will not fail. The executor is an officer of the court and is responsible to the court for all acts performed by him. We therefore say, when a person qualifies as executor he then ipso facto elects to take under the will, and not against it, and he must execute the will according to its tenor. Allen v. Allen, 28 S.E. 513; Mendenhall v. Mendenhall, 53 N.C. 287; Treadway v. Payne et al., 37 S.E. 460; Whetsell v. London, 57 N.E. 942.

The doctrine of election applies to still another phase of this case. We will say for the sake of the argument, that Angeline did not own the forty acres in question; that she had not the right to devise the interest therein to Robert, and that upon the death of Angeline the forty acres reverted to William. But we say that when Angeline, by her will, devised the forty acres belonging to William to Robert, and at the same time bestows by the will a benefit or a portion of her own property upon William, when William accepts under the will such portion of the property or such benefit which Angeline had a right and was able to give to him, William, thereby elects to take under the will and he cannot defeat the devise of his own property to Robert. Pomeroy (4 Ed.), Par. 464; Barrier v. Kelly, 82 Miss. 233, 33 So. 974; Sorenson v. Carey et al., 104 N.W. 958.

Without quoting further from the authorities, the proposition being so well settled, we call the court's attention to the following cases, where the above proposition is sustained: De Vitto v. Harvey, 104 N.E. 168; Wolly v. Schroder, 4 N.E. 658; Gorman v. Dodge, 14 N.E. 44; Stunz v. Stunc, 23 N.E. 407; Brown v. Brown, 44 N.W. 250, supra; More v. Baker, 30 N.E. 629; Allen v. Bonner, 52 N.W. 426; Ditch v. Sennett, 7 N.E. 636; Washburn v. Van Steenwyk, 20 N.W. 324; Borden v. Ward, 9 S.E. 300; Rawley v. Sauns, 40 N.E. 674; Goodrum v. Goodrum, 20 S.W. 353; Chancey v. Gregg, 32 S.W. 520 Reville v. Duback, 57 P. 522; Hill v. Hill, 41 A. 943; Hartwig v. Schiefer, 46 N.E. 75; Appeal of School, 17 A. 206.

The appellee urged in the lower court that the entire will including the devise made to William by Angie was void, by reason of section 2001 of the Mississippi Code of 1906, and that William took all of the property as mentioned in the will as an heir at law of Angie as though no will had been executed by her. It was admitted that William witnessed the will and it was proven that he received property under the will as a devisee. He is named executor therein without bond. He invoked the jurisdiction of the court, for the purpose of having the will probated. The will was probated as requested by William, and as required by the statutes, and he qualified as executor of the estate. He said in his petition under oath when he presented the will for probate, and when he asked that letters testamentary be issued to him, that Angie owned forty acres of land, which is identified by the witness at the trial, and he said that she owned at her death, real and personal property estimated to be worth six thousand dollars. This property was delivered to him as executor of the estate, and he entered upon the discharge of the duties required of him by law.

For the purpose of ready reference, we quote section 2001 of the Code above referred to: "2001 (1826). Devise to witness void. If any person be a subscribing witness to a will wherein any devise or bequest is made to him, etc."

The evident purpose of the above statute is to preclude a witness to a will from taking the specific devises or bequests, but not to avoid the entire will. Such person cannot take the specific devise yet he is a competent witness to establish the will in so far as it concerns the bequests and devises to other persons and he may be compelled to testify to establish the will as to such bequests made to other persons. The latter part of the statute, gives the witness to the will, if he be entitled to share in the estate as an heir, such part of the estate as does not exceed in value the devise or bequest to him. So then the practical application of the above statute, does not avoid the entire above instrument as a will. The portion of the estate which William would have received had Angie died intestate, would have been the whole estate, but the fact that he witnessed the will does not cause her to die intestate, nor does the fact that he witnessed the will give him the right to disregard the will and take the whole estate, but only causes the will to be void, in so far as the devise of the specific property to him is concerned. The proving the will by William does not cause him to be entitled to receive the entire estate, but only that portion of the whole estate which does not exceed the value of the estate devised to him. Thus William is entitled to receive from the estate as his portion of the whole, the value of the life estate in the real and personal property plus the value of the crops grown during 1918. Branson v Watkins, 23 S.E. 204. See on this subject 1 Pom. Eq. Jur. pars. 483, 484, and notes; 2 Jarm. Wills (Rand and T. Ed.), 1 et. seq.; Hern, Estop., par. 892; Board v. Board, L. R. Q. B. 48; Dewar v. Maitland, L. R. 2 Ed. 834; Suttons Appeal, 112 Pa. St. 598, 4 A. 6; Smith v. Guild, 23 Me. 443; Morrison v. Bowman, 29 Cal. 337; Smith v. Smith, 14 Gray, 532; Hatcher v. Cade, 55 Ga. 359; Parker v. Crittenden, 37 Conn. 148; Utermehle v. Norment, 49 Lawyer's Edition, page 655; Hyde v. Baldwin, 17 Pick. 303, 308; Fry v. Morrisson, 159 Ill. 244, 42 N.E. 774; Madison v. Lorman, ...