White v. Inman, 38015

• Decision Date: 08 October 1951
• Docket Number: No. 38015,38015
• Citation: 212 Miss. 237,54 So.2d 375,30 A.L.R.2d 380
• Parties: , 30 A.L.R.2d 380 WHITE et al. v. INMAN et al.
• Court: Mississippi Supreme Court

Page 375

54 So.2d 375

212 Miss. 237, 30 A.L.R.2d 380

WHITE et al. v. INMAN et al.

No. 38015.

Supreme Court of Mississippi, Division B.

Oct. 8, 1951.

Clay B. Tucker, Maxwell Bramlette and H. C. Leak, all of Woodville, Truly & Truly, Fayette, John Laycock, Baton Rouge, La., for appellant.

Breed O. Mounger, Tylertown, Charles F. Engle, Natchez, Jesse Hunter Inman, Baton Rouge, La., for appellee.

ETHRIDGE, Commissioner.

This controversy involves the determination of whether a particular instrument is a deed or will, and of its effect if valid as either. On October 28, 1889, B. R. Inman executed an instrument, the original of which has been lost, but it was recorded on the same day in the land deed records of Wilkinson County, as follows:

'In consideration of natural love and affection which I bear my wife, L. A. Inman, and my daughter Inez Inman, I give, grant and convey to my said wife and daughter, as joint tenants, with the right of survivorship, to take effect at my death and not sooner, the following described land, to-wit: * * * (here follows a description of property) * * *. But if both of said Grantees shall die without heirs, descendants of mine, living at the death of the last of said Grantees, then the remainder of said estate after such death of the survivor of said grantee, shall go to my lawful heirs in fee simple.

'Witness by hand this 28th day of October, A.D. 1889.

'Witness

W. K. Cooper

W. G. Huff

'State of Mississippi

'Wilkinson County}

B. R. Inman

Personally appeared before me the undersigned clerk of the Chancery Court in and for said County, the within named B. R. Inman, who acknowledged that he signed and delivered the foregoing instrument on the day and year therein mentioned.

'Given under my hand and seal of said court this 20th day of October 1889.

'R. W. P. Huff, Clerk

'Filed for record by L. A. Inman, October 28th, 1889 at 11 o'clock A.M.

'R. W. P. Huff, Clerk.'

L. A. Inman, one of the joint grantees in that instrument and the second wife of B. R. Inman, died in 1892. B. R. Inman died in 1899. At the time of his death his surviving children were Inez Inman, his daughter by his second wife, and five children by his first wife, namely, R. M. Inman, Lilla Inman White, Susie Inman Stewart, W. L. Inman and B. W. Inman.

Immediately after the death of B. R. Inman in 1899, Inez Inman, later Inez Inman MacLeod, went into possession of the property described in the above instrument, dated October 28, 1889, and remained in possession of it until her death on August 3, 1948. In April, 1899, upon petition of Inez Inman, a minor twenty years of age, by her aunt and next friend, Miss Carrie V. Harris, an appellant here, the chancery clerk of Wilkinson County appointed an intestate administrator of the estate of B. R. Inman, the estate was administered, was insolvent, and in 1900, the chancellor discharged the administrator. All of the other children of B. R. Inman died many years prior to the death in 1948 of Inez Inman MacLeod, who left no surviving children.

Shortly after the death of Inez in 1948, Jesse Hunter Inman, a grandson of B. R. Inman, filed a petition in chancery court in common form requesting that the above quoted instrument be admitted to probate as the last will and testament of B. R. Inman. On August 21, 1948, the chancery court executed a decree admitting the will to probate as that of B. R. Inman. In November 1948, five grandchildren and three great grandchildren of B. R. Inman filed the present bill of complaint in the Chancery Court of Wilkinson County against Lee I. White, a maternal grandson of B. R. Inman, and sole heir of his mother, and also the sole devisee of his aunt, Susie Inman Stewart, a daughter of B. R. Inman, and three great grandsons of B. R. Inman. The bill charged that B. R. Inman left a last will and testament, the above quoted instrument, which had been duly admitted to probate, that under that instrument he left the described property to Inez for her life, and that at her death the lands descended to the lawful heirs of B. R. Inman living at the time of the death of Inez in 1948. Listing thirteen parties as grandchildren and great grandchildren of B. R. Inman, and charging that these parties took interests under the above instrument per capita individually, and not per stirpes as a class, the bill asked that the court adjudicate that the thirteen stated grandchildren and great grandchildren of B. R. Inman were each entitled to an undivided 1/13th interest in the land as tenants in common.

Defendants and appellants Lee I. White and R. I. Lessley (Lessley intervened as a defendant) pleaded that the instrument was a valid deed; that the lawful heirs of B. R. Inman must be determined as of the date of his death; that Inez did not take under the ulterior limitation to the lawful heirs of B. R. Inman because by that phrase B. R. Inman meant heirs other than Inez Inman; that White was the owner of a one-fifth interest as the sole heir of his mother, Lilla Inman, and another one-fifth interest as the sole devisee of his Aunt Susie, also a daughter of B. R. Inman; that Lessley was the owner of a one-fifth interest as the sole devisee of W. L. Inman, son of B. R. Inman. The three great grandsons made defendants admitted the averment of the bill.

Appellant Carrie V. Harris was admitted as a party defendant, and by answer and cross-bill averred that she was the sole devisee of Inez Inman MacLeod; that the instrument was invalid as either a will or deed and that B. R. Inman died intestate, which is now res judicata; that B. R. Inman died intestate owning the lands in question, which descended to his six children in equal shares, and that Inez acquired the entire fee title to the land by adverse possession against her co-tenants; that Inez fulfilled the conditions of the instrument, if valid, by having heirs who are descendants of B. R. Inman living at her death; that if the instrument is valid as a deed or will, the lawful heirs are determined as of the date of testator's death, and Inez received an undivided one-sixth interest, which she devised to appellant Harris.

The foregoing is a brief summary of the major contentions of the parties. There was a hearing before the chancery court with witnesses testifying concerning whether Inez had possessed the land adversely to the other heirs. The chancery court adopted in full the theory of complainants' bill. It held that the instrument was the duly probated will of B. R. Inman; that Inez received a life estate with remainder to the lawful heirs of B. R. Inman living at the date of the death of Inez in 1948, being thirteen grandchildren and great grandchildren who survived the life tenant; that appellant Lee I. White took a one-thirteenth interest, and that appellant Lessley took no interest, because he was the devisee of W. L. Inman who died in 1927 before the death of the life tenant, and having died before her, W. L. Inman had no estate to transmit by devise; that Harris received no interest in the land as devisee of Inez, and that Inez obtained no estate by adverse possession. From that decree White, Lessley, and Harris appeal. White claims a two-fifth and Lessley claims a one-fifth interest in the property, excluding Inez as one of the 'lawful heirs' of the testator on his death. Harris claims at least a one-sixth interest as the devisee of Inez, and also the entire estate which allegedly was acquired by Inez by adverse possession.

We think that the instrument dated October 28, 1889, must be considered as testamentary in character and as a will rather than a deed. The controlling question is whether the maker intended to convey any interest before his death, or whether he intended that all of the interest should vest and take effect after his death. B. R. Inman expressly said that the instrument was 'to take effect at my death and not sooner.' Such a provision, which is stronger than that in Gaston v. Mitchell, 1942, 192 Miss. 452, 4 So.2d 892, 6 So.2d 318, has been held repeatedly to be testamentary and inoperative to vest any present interest. In Peebles v. Rodgers, Miss., 1951, 50 So.2d 632, a somewhat similar clause was construed in the same manner. The distinction there made of Watts v. Watts, 1945, 198 Miss. 246, 22 So.2d 625, is also applicable to the present case. The instrument was witnessed by two witnesses, as well as being acknowledged before a notary public. This adequately meets the statutory requirements as to form.

It is further contended that the appellees are now estopped to claim that the instrument is a will, because the predecessors in title of appellees were served with process prior to approval of the final account in the intestate administration of the estate of B. R. Inman in 1899. Closely related is the argument that in the intestate administration the court adjudicated that B. R. Inman died intestate, and that determination is res judicata on the appellees. The petition for letters of administration was signed by appellant Carrie Harris, next friend of Inez Inman, then a minor. It averred that B. R. Inman, 'as far as petitioner is informed and believes', left no will and died possessed of certain personal property only, 'except an interest in rents of land of which he was tenant for life, and said Inez remainder in fee * * *.' The chancery clerk's order granting letters found that B. R. Inman left no will. The estate was insolvent prior to the final decree. Process was served on all of the children of deceased, except Inez who was a party to the petition, directing them to show cause if any why the final account of the administrator should not be approved. The children filed no pleadings in the case. The chancellor by final decree found that 'all the property of deceased has been exhausted in the payment of debts * * * and that there is nothing in hand to pay to general creditors, or heirs of deceased,' and discharged the administrator.

The general rule is well...