Caine v. Barnwell

SteveNs, J., delivered the opinion of the court. Appellants are the nephews and sole devisees in the last will and testament of Mrs. Louise C. Barnwell, deceased, and prosecute this appeal from a decree of the chancery court of Jackson county overruling the demurrer to the bill of complaint exhibited against them by appellee, E. B. Barnwell. . Appellee is the surviving husband of the testatrix, who left a document purporting to be her last will devising certain lands to her nephews, the appellants diere. The document had been duly admitted to probate by the chancery clerk. Mrs. Barnwell made her^will October 9, 1916, devising certain lands occupied by her as a homestead and particularly described in the bill. The land apparently was the only property owned by the testatrix and is the only property mentioned or devised in the will. From the allegations of -the bill it appears that Mrs. Barnwell, soon after she made her will, executed and delivered to appellants a deed of conveyance for the same lands devised in the will. The bill charges that this conveyance, made subsequent to the will, was a revocation of the will, and for that reason — 225 — that. the probate of the will in common form should be set aside and the will declared revoked. There is an alternative prayer in the bill, that, if the court should hold that the will is good and valid, the complainant should be adjudged the owner of an undivided one-half, interest in the lands devised. It is averred that the lands constituted the exempt homestead of appellee and his wife, the testatrix; that the deed was void, because appellee, as the husband, did not sign the same; that the appellee did not possess a separate estate at the time of the death of hi's wife, and under our statutes, there being no provision whatever in the will for the husband, -ap-pellee is entitled, to be- awarded an undivided interest in the lands sued for. There are, furthermore, certain allegations in the bill attempting to charge that the will was the product of undue influence, but, under, our view of the bill and its sufficiency on this point, it is unnecessary to set out in detail the language employed by the pleader. Appellee prayed- that both the will and the deed be declared null and void and cancelled. There is also an averment that appellee made large expenditures improving and keeping up the estate, and that he was entitled to be reimbursed therefor in event the lands were not awarded him. The bill charges also that the description of the land as contained in the alleged will is imperfect and insufficient, in that the will does not state in what county the lands were situate. The demurrer submits various grounds why the bill is in sufficient, the principal of which are: That there is no equity on the face of the bill; that the will is not void because of any imperfect description of the lands devised; that the law cannot infer a revocation of the will in this case; and that the allegations are not sufficient to uphold any relief whatever. The — 226 — demurrer was overruled, and an appeal granted to this court. Notwithstanding our statute, section 5079, Code of 1906, section 3367, Hemingway’s Code, expressly providing how a devise may be revoked, the doctrine of implied revocation, at least to some extent, has always been recognized in Mississippi. Garrett v. Dabney, 27 Miss. 335; Jones v. Moseley, 40 Miss. 261, 90 Am. Dec. 327; Hoy v. Hoy, 93 Miss. 732, 48 So. 903, 25 L. R. A. (N. S.) 182, 136 Am. St. Rep. 548, 17 Ann. Cas. 1137. As stated by Judge FletcheJr, speaking for' this court in Hoy v. Hoy, supra, our present statute providing how wills may be revoked “is identical with the statute in effect in 1854.” Our court in Garrett v. Dabney, supra, observed: “'That this' statute is, in substance, the same as the sixth section of 29 Charles II.” and “it is well settled in England' and the United States, that the statute applies to acts of direct and express revocation, and’that a will may be revoked by implication or inference of law by various circumstances not within the purview of the statute.” In our judgment the bill does not charge facts from which undue influence could be lawfully inferred. No sufficient attack is made upon the mental capacity of the testatrix or the formal execution of the'will. On the contrary the will is duly signed and witnessed and has been admitted to probate in common form. The bill mainly relies on the charge that the testatrix executed and delivered a deed to the.same land devised in the will; that this deed was executed subsequently to the making of the will, and for that reason operates as a revocation. The only infirmity in the deed is the fact that the husband did not sign the conveyance, and the deed being for the exempt homestead is condemned by our statutes. — 227 — Judge Hakris, speaking for this court, in Wells v. Wells, 35 Miss. 638, discussed the doctrine of implied revocation and the effect of a deed executed subsequently to the will, among other things saying: “Admitting the doctrine of implied revocation as 'still existing in our state,- notwithstanding our statute, yet to give to a deed or other, conveyance such operation, it has long been settled, that there must he a subsequent, conveyance of the whole estate. “The doctrine of implied revocation proceeds only upon the principle of presumed intention, and such presumption may be rebutted .by circumstances. Douglas, p. 31; Brush v. Wilkins, 4 John. Ch. (N .Y.) 506; Yerby v. Yerby, 3 Call. (Va.) 334. “If the inconsistency, between the will and the deed subsequently made, be merely partial, the revocation will not extend beyond such inconsistency; because the law will presume the testator intended only a revocation pro tanto, and not in toto. Cowp. 90; 2 Vern. 720; Tol. 19; 2 Ves. Jr. 428; Livingston v. Livingston, 3 John. Ch. (N. Y.) 148; In re Mickel, 14 John. [N. Y.] 324; Goodtitle ex dem. Holford v. Otway, 7 Term. R. 416, 417. “Indeed, as no change in intention can be inferred in this case, ¿ither as to the object of his bounty, or the subject, of the gift, from the subsequent conveyance of a part of the same property to the same donee or grantee by the testator, the conclusion would seem to be inevitable that the deed must be regarded as affecting the disposition of the will only pro tanto In the Wells Case, supra, the grantee in the deed was the same as the beneficiary in the will. That case, we conceive, is authority for the proposition that a deed subsequently made must,-to some extent at least, be inconsistent with the will. In the case at bar the deed does not expressly mention or revoke the vp.ll and there are ‘no extrinsic factso or circumstances from — 228 — which an inference to revoke the will may be drawn. On the contrary the execution and delivery of the deed of conveyance to the same beneficiaries may be said to be evidence of a continued purpose and intention to • make the appellants in this case the beneficiaries of the estate involved and to confirm the gift. If the' testatrix had made a deed to a grantee other than the devisee in'the will, a different intent, we think, could be inferred. But the deed in this case, if valid, would have only hastened the day when the objects of the testatrix’s _ bounty would become seized and possessed of the subject-matter of the gift. The testatrix did not change the beneficiaries or depart from her intention to make appellants owners of her lands. She did not try to take from one and bestow upon another. The authorities on this point are not altogether in accord. Of course, if the deed were valid, appellants could claim under the deed and not under the will and no question would here be presented. The arguments proceed on the theory that the deed is void and that appellants so recognized and treat' the conveyance. If the deed were valid, a better argument could be made in favor of a revocation. The general rule is correctly stated by Mr. Alexander in his Commentaries on Wills, vol. 1, section 542, p. 736, as follaws: “The general rule is that- a conveyance of an estate or interest therein previously dévised or bequeathed is deemed a revocation thereof if so expressed in the conveyance and, whether or not so xpressed, it will act as a revocation if the provisions of the conveyance are totally inconsistent with the devise or bequest. If the transfer be upon ‘ condition which has failed it would then stand as if no transfer had been made.” Some of the authorities go to the extent of holding that an ineffectual conveyance operates as a revocation, even when the grantee in the deed is the same as the — 229 — beneficiary in the will. But if the parties are the same in both instruments/ there is no real inconsistency. As stated by the Supreme Court of Pennsylvania in Aubert’s Appeal, 109 Pa. 447, 1 Atl. 336: “The usual mode of revoking wills is by a subsequent will or codicil containing an express clause of revocation, of provisions which are inconsistent with the former will. Jarman on Wills, 336. And the same writer lays down the doctrine, which I do not understand to be seriously disputed, that an instrument purporting to be a conveyance, but incapable of taking effect as such, may operate to revoke a previous devise. But the reason of this -rule evidently is that the subsequent conveyance was inconsistent with the devise and disclosed an intent to revoke it. But here the acbe de nobariebe is in entire harmony with the previous will. It passed the same estate and to the same person. It was evidently intended to confirm the will. It yras not necessary; it adds no strength to the will; but to say that it revokes what it was intended tó make sure is a contradiction of terms.” The reasoning and position of the Supreme Court of Pennsylvania was approved by the Supreme Court of Minnesota in Gregory v. Lansing, 115 Minn. 73, 131 N. W. 1011, the court saying: “The contention that the will has been revoked by operation of law is ■ not sound. This contention is founded upon the fact that after the execution of the will and before her death testatrix conveyed^ to respondents the specific property devised to them, and the further fact that since her death the nieces, beneficiaries by the terms of the will,' have adjusted their rights in the manner provided for by the will. The conveyance of the property to respondents constituted what the jmoks term an • ademption or satisfaction of the particular devise, and was not in contemplation of law a revocation of the will. Aubert’s Appeal, 109 — 230 — Pa. 447, 1 Atl. 336; Woerner’s Law of Administration, section 446.” To the same effect is the holding of the .North Carolina Supreme Court in Pickett et al v. Leonard, 104 N. C. 326, 10 S. E. 466. In the case mentioned the testator had devised to his son eighty acres of land. Thereafter he executed a deed to his son for a portion of the land so devised. The court on this point said: “What the testator’s motive for this was does not appear. But, whatever it may have been, he did what he had power to do. This deed did not affect the devise, except to the extent of the land conveyed by it. As to that it had the effect to place the title thereto in the defendant in the testator’s lifetime. In effect, as to this land, the will was no more than in affirmance of the deed. There it nothing in the will that in terms or by implication modifies or qualifies the devise. So it took effect and' became operative, as far as it might do so, at the time of the testator’s death. It did «not pass the title to the land embraced by the deed, because the deed itself did that in the testator’s lifetime. If, however, for any cause, the deed was ineffectual, then the devise passed the title to that land. The devise passed title to the defendant to so much of the eighty acres embraced by it as the deed did not include. This is the plain meaning and effect of the terms of the devise, and there is nothing in the will that provides otherwise, nor is there any reason in law why it shouldonot.” In the later Pennsylvania case of In re Gensimore’s Estate, 246 Pa. 216, 92 Atl. 134, the testatrix orally contracted to sell the land previously devised, and had deposited the money in escrow to be delivered upon the payment of the purchase money but died before the deed was delivered. It was held that the ineffectual attempt to dispose off the land revoked the — 231 — prior will, but the grantee in the deed was the testator’s tenant and not the beneficiary of Ms will. ■ Apparently opposed to the views we express are the observations of the Kentucky court in tbe case of Kean’s Will, 9 Dana, 25, where the grantee in the deed is the same . as the devisee in the will. The better view, we think, is the one which our court apparently adopted in the Wells Case, supra, and which appeals to our sense of right and justice now; that is, when the donee in. the deed and the devisee in the will are the samé, there is in such case no real inconsistency and therefore no implied revocation. There are numerous cases reflecting instances where the testator, ' after making his will, sold or conveyed a portion or all of his estate to third parties, or parties other than the beneficiaries claiming the devise. We regard the present case as an exception fo the, general rule, an instance where there is no change either in the object of the .testator’s bounty or the object of the gift. We are not concerned in the present case with the general doctrine of the ademption of specific legacies. The subject of the devise in this case has not been lost, destroyed, or effectually disposed of. The question is a narrow one, and if it were the only question presented by the demurrer we should have to conclude that the demurrer be sustained. But there is another phase of the case and other rights claimed by the bill and presented by the alternative relief prayed for therein. We proceed then to a consideration of the surviving husband’s rights in the homestead or estate of his deceased wife under the facts set forth in the bill. While the bill relies upon an alleged revocation of the will and, if sufficient on this point, would’ present ordinarily an issue devisavit, the case essentially made by the bill is an equity case. The prayer of the bill is that both the will and the deed of conveyance — 232 — should be canceled, and that complainant should be held the true and lawful owner of the lands sued for. The bill sufficiently describes the lands, and essentially the suit is one involving real , estate. There is no provision in the will for the surviving husband, and under the averments of the bill section 5087, Code of 1906, section 3375, Hemingway’s Code, applies. The surviving husband as complainant relies upon his statutory rights, and by an alternative prayer in the bill asks that he be declared and adjudged the owner of an undivided one-half of the property described and sued for. Under the averments of the bill he is entitled to this relief, and for that reason the demurrer was properly overruled. /We do not mean to hold that the bill does not present a proper ease for the exercise of the probate jurisdiction of chancery. The bill doe^ attempt to tender issues as to the validity of the will and prays its cancellation. But probate and equity jurisdiction are now by the Constitution conferred on our chancery courts, and nothing is to be gained by any attempt, in a given case, ■ to trace out and declare the line of demarcation between the two jurisdictions. - The chancery court' may try the issue devisavit whenever properly presented, and this jury trial ' should not be confused by any issue as to the construction of the will or the rights of the surviving spouse under our statutes. It yet remains that, under the blended and enlarged jurisdiction of chancery courts, more issues than one might appropriately be tendered by the original bill attacking or contesting a will, especially when the suit, involves title to real estate. There is then no objection to the alternative prayer for relief in this case. Complainant likewise. has a right to have the void deed canceled. In a proper case the surviving husband, continuing in possession of the exempt homestead after the death of his wife, prior owner thereof, might — 233 — be entitled to reimbursement for a portion of the taxes and a reasonable allowance for improvements made in good faitb for the benefit of the common estate. We do not think the allegations of the bill in the present case are specific or definite enough on this point to entitle complainant to relief. The court upon application may, in its discretion, allow proper amendment of the bill in this regard. There is no merit, we think, in the contention that the will does not sufficiently describe the lands devised. The caption of the will read, “State of Mississippi, Jackson county.” The will also recites that the testatrix resided at “Dead Lake, Jackson county,' state of Mississippi.” The lands are definitely described according to the government survey, stating the section, township, end range. The document as a whole, then, is sufficient to show conclusively that the lands are situate in Jackson county. The decree of the learned chancellor will be affirmed, and the cause remanded for- further proceedings not inconsistent with the views expressed in this opinion. Affirmed and remanded.