Doran v. Beale

Smith, C. J., delivered the opinion of the court. On March 13, 1906, S.' M. Cox and wife conveyed and warranted “unto Jane B. Beale of Champaign, Illinois, an undivided one-fifth interest, and unto Florence Beale Doran and Ed. J. Beale, jointly, both of Champaign, Illinois, an undivided four-fifths interest in and to” the land here in controversy. Jane ft. Beale, who was the mother of Ed. J. Beale and Florence Beale Doran, died intestate in Illinois, leaving as her heirs at law the two children just mentioned and another daughter, Ida Beale. All of these parties, except Ed. J. Beale, were residents of the state of Illinois, the last named being a resident of the state of Mississippi. On May 8, 1911, Florence Beale Doran died at her residence in Illinois, leaving a last will and testament, which was duly probated in the proper court in that state. On June 17, 1912, a duly authenticated copy thereof was admitted to probate in the chancery court of Holmes county, Mississippi, in which county the land here in controversy is situated. No provision was made in this will for the husband of the testatrix, and by it her whole estate was devised to her only child, E. B. Doran, for life, with remainder to his lawful issue should he die leaving such, and, in default thereof, to Ida Beale. Afterwards, appellant renounced this will in the county of the state of Illinois where it was probated. At the time of the death of Florence B. Doran, she and appellant were living apart, though not — 318 — divorced; be being then a resident of the state of Arkansas. After the death of his mother, E. B. Doran executed and delivered to Ida Beale a deed to all of his interest in the property here in controversy. There is an outstanding deed of trust on this land to the Union Central Life Insurance Company, securing to it the payment of the sum of six thousand five hundred dollars, due and payable on November 24,1914. On the 11th day of October, 1911, appellant filed his bill in the court below praying for a partition of the land, and claiming to be the owner, under the laws of the state of Mississippi of one-half of the interest therein of which his wife died seised and possessed. This will, together with appellant’s renunciation thereof, is set forth in the bill and amendments thereto. From a decree sustaining a demurrer to this bill, this appeal is taken. This demurrer contains a number of grounds, and the reporter will set it out in full. In support of the sixth ground of demurrer it is argued that by the use of the word “jointly” immediately following the designation of Florence Doran and Ed. J. Beale as grantees in the deed from Cox and his wife, they were created joint tenants with the right of surviv-orship. In this counsel are in error. ‘ It may be that prior to the enactment of óur statute which now constitutes section 2770 of the Code of. 1906, the use of the word in this connection would have conferred an estate in joint tenancy, with the right of survivorship, for every presumption then was in favor of the creation of a joint tenancy by the conveyance of an estate to two or more persons without the clear indication of an intention that it-should be divided among them; but this statute reversed this presumption, and such a conveyance must now “be construed to create estates in common, and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instruments, that it was intended to create an estate in joint tenancy or entirety with the — 319 — right of survivorship; but this provision shall not apply to mortgages or devises, or conveyances made in trust.” The use of the word “jointly” in this deed is consistent with an intention to simply convey the interest designated to both of the two grantees, and it cannot be said that by its use the grantor manifestly intended to create a joint tenancy with the right of survivorship. Had he desired so to do it would have been so easy to have said so in express words. Mustain v. Gardner, 203 Ill. 284, 67 N. E. 779. The seventh ground of demurrer is'clearly untenable. Section 3521 of the Code of 1906, which provides for the partition of land held by two or more persons in common, contains no exceptions relative to land on which there is an incumbrance. Section 3525 recognizes this right of partition of such land, expressly provides for the apportionment of the incumbrance thereon if “it be deemed proper to do so,” and contains no provision that this shall be done only after the maturity of the debt secured. Whether or not it is proper to apportion an incumbrance upon land partitioned must be determined by the facts of each case. The remaining grounds of the demurrer will be considered and disposed of together. With reference to these counsel for appellant say in their brief that they ‘ ‘ stand upon the following propositions: “First, the act of renunciation by. the husband of the will of the wife probated in Illinois, her domicile, does not carry with it the legal effect to render her estate in Mississippi subject to the law of descent and distribution in the state of Mississippi. ‘ ‘ Second, the renunciation of the husband in the proper court of the domicile of the testatrix in Illinois can only have the effect to entitle him to whatever rights such act of renunciation would give him under the laws of the domicile. “Third, a renunciation of a foreign will is unauthorized by our law, and the act of renunciation of the com — 320 — plainant does not have the like effect of a renunciation made in a Mississippi forum in a proper case, and did not have the effect that the entire absence of any provision for the husband in the will of the wife probated in the proper court in this state as the domicile of the wife would have in such a case.” We have not been advised, and have not endeavored to ascertain, what the law of Illinois is relative to the right to renounce a will, and the effect thereof upon the descent of land therein devised. We will assume, as counsel evidently have done, that it was necessary for appellant to renounce the will; that this was properly done in Illinois; that effect will be given thereto here; and that the demurrer was properly sustained, unless appellant, by reason of having renounced the will, is entitled to such an interest in the land as is provided by our statutes of descent and distribution. The question here presented is not a new one, for it arose and was disposed of adversely to appellant, as early as 1844', in the case of Garland v. Rowan, 2 Smedes & M. 617. In stating and deciding this case, the court, in its opinion, said: “This is the case of a will made by a citizen of Virginia, domiciliated in that state at the time of his death, which occurred there, but owning lands and slaves in this state. The will was admitted to probate in Virginia, and subsequently in this state. The appel-lee, who is the widow of the testator, renounced the provisions of the will made in her favor, and claimed her dower in the realty and her share of the personalty according to law. That renunciation was made and recorded in Virginia, and in this state, as appears from the record. The point presented for determination is whether, as to the property in this state, the widow is entitled to participate according to our own laws, or according to the laws of Virginia, the place of the domicile of herself and her late husband. It is admitted that by the laws of Virginia, the wife is entitled to only one321 third of the personalty for her life, whilst by the laws of this state, when as in this instance, there are no children, she is entitled to one-half in fee simple. To the parties thereto, the decision is of much importance. It may be as well to remark in the commencement that as to the real estate there is no diversity of opinion; it is universally conceded that such estate is governed, in its transmission and descent, by the laws of the country in which it is situated. In relation to the distribution of personalty, the law, though formerly the subject of much controversy, appears to be well settled that the law of the domicile of the decedent is in general to give the rule.” The court then proceeded .at length to show why personal property should be distributed according to the law of the domicile of the decedent. The decree of the court below was founded upon the rule that both the realty and personally would descend and be distributed according to the law of Mississippi, and this decree was reversed in so far as it applied to the personalty, and appellee adjudged to be entitled to a distribution thereof according to the laws of Virginia; but it was affirmed in so far as the disposition made of the real estate was concerned. The authority of this case is somewhat weakened by reason of the fact that counsel for the appellant therein seemed to have tacitly conceded that, in so far as the real property was concerned, the court below properly held that it should be dealt with according to the laws of the state of Mississippi. It is. in accordance, however, with the practically universal rule, in the absence of statutes providing to the contrary, that real estate will descend according to the law of the place where it is situated, and the general, but not so universal, rule that personal property will be distributed according to the law of the domicile of the deceased, and has stood from its rendition apparently unchallenged. This case is cited by counsel for appellee in support of their contention, and they refer to the fact that no question was raised — 322 — therein relative to the widow’s right to dower; but, as before stated, this simply weakens, but does not destroy, the authority of the case. The other cases relied on by counsel for appellees are Slaughter v. Garland, 40 Miss. 172, and Wilson v. Cox, 49 Miss. 539. After the decision in Garland v. Rowan, the following statute was enacted by the legislature: “All personal property situated in this state shall descend and be distributed according to the laws of this state regulating the descent and distribution of such property, regardless of all marital rights which may have accrued in other states, and notwithstanding the domicile of the deceased may have been in another state, and whether the heirs or persons entitled to distribution be in this state or not; and the widow of such deceased person shall take her share in the personal estate according to the laws of this state” — and which is now section 1648 of the Code. In Slaughter v. Garland, supra, which involved the distribution of personal property only, the court was asked to hold that, where a widow renounces the will of her husband, probated at his domicile in a foreign state, the personal property owned by him in this state should be distributed according to the laws thereof, and not according to the laws of decedent’s domicile. This the court declined to do, but adhered to the rule announced in Garland v. Rowan, and showed why it was that the statute had not changed it. In Wilson v. Cox no question of the effect of a renunciation of a will probated in a foreign state upon the descent of land situated in this state was involved. In that case, the testator lived and died in Louisiana, made no disposition of the land owned by bim in Mississippi, and the court simply held that as to such land he died intestate, and the widow’s interest therein was governed by the laws of this state. It is true that there is a valuable discussion therein relative to the effect of a renunciation of a will, but the point itself was not involved in the decision. — 323 — Tbe argument of counsel, for appellees in effect is tbat when appellant renounced bis wife’s will, be thereby elected to take tbat portion of ber estate to wbicb be is entitled under tbe law of descent and distribution of tbe state of Illinois. It is true tbat appellant, by renouncing his wife’s will, elected to take tbe portion of ber estate to wbicb he is entitled under tbe law of descent and distribution, but not necessarily tbe law of descent and distribution of tbe state of Illinois. His election was to take tbat portion of her estate to which be is entitled under tbe laws wbicb governs the descent and distribution of ber property; and tbe law governing tbe descent of real estate is tbe law of tbe place where situated. Reversed and remanded with leave to appellees to answer within sixty days. Reversed and remanded.