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TAYLOR v. RABY ET AL
H.W. Gautier, of Pascagoula, for appellant.
This court in previous decisions has held that the construction or the determination as to whether or not a writing is testamentary or of the character of a deed depends upon the facts of the particular case or the intention of the party as construed from the words of the instrument. That is, that each case must be considered in its own light and must stand on its own bottom.
Schauff v. Schauff, 11 A.L.R. 15.
Beginning back with the old case of Wall v. Wall, 30 Miss. 91, and Sartor v. Sartor, 39 Miss. 760, this court held that the style of an instrument or the name that the party gives to it does not fix its character but that the construction and determination of the character of an instrument as to whether it is a deed or a will, rests on the time of the vesting of an interest in the subject matter in the party to be benefited. If there is vested in the grantee a present interest in property, though the possession is to be deferred until the death of grantor the instrument is construed as a deed. If, however, the instrument is to take effect at the death of the grantor, even though it has the wording of a deed, it is to be construed as a will.
Cunningham v. Davis, 62 Miss. 366; Cox v. Reed, 74 So. 330; Simpson v. McGee, 73 So. 55; Knight v. Knight, 97 So. 481.
Did any interest in Hill's personal money vest in the appellees? Was any delivery of said money or property made to the appellees? We emphasize, certainly not. And if the court agrees with us on this contention, and we are confident that this court will do so, then that clause of the instrument did not constitute a deed and must fail, but it had a testamentary character and must likewise fail, because not properly executed as a will, and for the further reason that it was revoked, as Hill had a right to do as far as his personal money was concerned by the execution of his subsequent will exhibited to the bill of complaint.
Stubblefield v. Hayward, 86 So. 295.
H.P. Heidelberg, of Pascagoula, for appellees.
We submit that for a construction of the contract under date of August 18, 1934, that in an instrument of this kind, that while they speak for themselves, yet they must be construed as of the time of execution to determine whether or not they are contractual or testamentary, and to determine which of these categories they fall into, and that further its character cannot, or rather should not be changed by the court, except upon convincing proof or where such instrument is absolutely in conflict with some protective statute or as a matter of public policy.
Savage v. Bonair Coal Co., 2 Tenn. Ch. App. 594; Thompson v. Thompson, 279 Ill. 54, 8 L.R.A. (N.S.) 1130; Wall v. Wall, 30 Miss. 91; Craft v. Moon, Miss. 569; McWillie v. Van Vacter, 35 Miss. 449; McDaniel v. Johns, 45 Miss. 643; Shaull v. Shaull, 182 Iowa 777, 11 A.L.R. 15.
It seems to be the rule that in determining whether an instrument is a contract or a will the dominant purpose of the maker as manifested therein must control.
In re Fuheman, 244 N.W. 628, 209 Wisc. 218; Beysehlog Estate, 231 N.W. 162, 201 Wisc. 613; Cowleys Estate, 136 Penn. 628, 10 L.R.A. 93; Craft v. Moon, 201 Ala. 14, 75 So. 202; Shaull v. Shaull, 11 A.L.R. 15; Seay v. Higgins, 70 So. 113; Sartor v. Sartor, 39 Miss. 760.
It further appears that in an early Mississippi case, Harrington v. Bradford, Walker (Mississippi) 520, in as much as delivery is requisite to the validity of a deed, but not of wills, the fact that an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the grantor, is delivered to constitute additional evidence that the maker intended the instrument to pass a present interest thereto, constitutes a deed.
Another rule seems to be in such cases that when the paper on its face is unequivocal, the presumption is against its operating as testamentary unless it is made clearly to appear that it was animus testandi, where being intended by the maker to operate a posthumous disposition of his estate.
Abney v. Moore, 18 So. 60, 106 Ala. 131; Pentoco v. Hays, 75 Kans. 76, 9 L.R.A. (N.S.) 224.
Where an instrument in the form of a deed containing a provision postponing its taking effect until after the death of the maker, is not attested as required of wills, it is ascertained that the maker intended the instrument to pass a present interest.
Collier v. Carter, 146 Ga. 476, 11 A.L.R. 1; Wall v. Wall, 30 Miss. 91; Sartor v. Sartor, 39 Miss. 760; McDaniel v. Johns, 45 Miss. 632; Exum v. Canty, 34 Miss. 533; Edwards v. Smith, 35 Miss. 197; Cunningham v. Davis, 62 Miss. 366; Brenson v. Sandifer, 42 So. 89, 90 Miss. 38; Rogers v. Rogers, 43 So. 434; Myers v. Viverett, 70 So. 449, 110 Miss. 334; Simpson v. Megee, 73 So. 55, 112 Miss. 344; Cox v. Reed, 74 So. 330, 113 Miss. 488; Morgan v. Haywood, 76 So. 262, 115 Miss. 354; Kelly v. Covington, 81 So. 485, 119 Miss. 658; Knight v. Knight, 97 So. 481, 133 Miss. 74.
In the case at bar, the appellees herein had at the time of the signing of the contract a present and tangible interest in all of the property at the time the contract was made, and they granted to Hill the right of use and disposition thereof during his lifetime, providing that they (the appellees) did not interfere with the bank in the administration of the trust fund.
Johnson v. Seeley, 103 So. 499, 139 Miss. 60; Graham v. Tripplett, 114 So. 621, 148 Miss. 299; Simpson v. Megee, 73 So. 55, 112 Miss. 344.
We submit that from the reading of the instrument, in the case at bar, and the relation of the circumstances and conditions as outlined in the instrument, it makes clear the intention and purpose of all the parties thereto, and that the instrument in the case at bar needs no explanation or states no difficulty to construe the intention of all of the parties thereto. It was a settlement as between them of the property of the mother of these appellees and of the now deceased W.H. Hill, and that the circumstances and conditions leading up to what brought it about, and the intentions of all of the parties is made clearly manifest from the reading of the instrument, and that the intention and purpose of the parties thereto is made manifestly plain.
Hagan v. Hagan, 161 N.W. 380, L.R.A. 1917C 964; Scharnick v. Scharnick, 220 P. 397, 31 A.L.R. 159; Silney v. Cornier, 139 A. 665; Fuhrmann's Will, 244 N.W. 628; Hunt v. Hunt, 119 Ky. 39, 7 Am. Eng. Ann. Cas. 788.
A deed delivered and recorded in obedience to direction by one to whom it was delivered in escrow conveying land to one and the heirs and assigns passes title although it provides that it is to take effect immediately upon the death of the grantor.
Shaull v. Shaull, 182 Iowa 777, 116 N.W. 301, 11 A.L.R. 15.
WILLS.
Agreement whereunder for specified consideration husband attempted to convey to wife's heirs all property which he owned at time of his death and authorized heirs to take possession thereof on his death held testamentary in character, so as to be inoperative as deed, since instrument did not purport to convey any present interest in any property or any interest in any specific property to vest in future.
Cook, J., delivered the opinion of the court.
This is an appeal from a decree of the chancery court of Jackson county sustaining a demurrer to, and finally dismissing, the bill of complaint filed by the executor of the last will and testament of W.H. Hill, deceased, against the heirs at law of Mrs. Alice E. Hill, deceased, and the Merchants Marine Bank of Pascagoula, Miss.
The bill of complaint and exhibits thereto show the following facts: In the year 1908, after the execution of an antenuptial agreement between them, dealing with their separate properties, the testator, W.H. Hill, was married to Mrs. Alice E. Hill, who was then the mother of four children by a former marriage. These parties lived together as husband and wife from the date of their marriage until the death of the wife on August 7, 1934, during which time they accumulated considerable property, consisting of real estate and cash on deposit in the defendant bank, and the separate property mentioned in the antenuptial agreement became commingled. Shortly after the death of Mrs. Hill, her children and the said W.H. Hill entered into a contract for the recited purpose of finally and fully settling and determining the interest of the said W.H. Hill in the estate of his deceased wife as heir at law, and finally determining his separate interest in all property owned by them jointly and severally, or as tenants in common, and for the further purpose of avoiding litigation in reference thereto.
By this contract the children of Mrs. Hill conveyed to the said W.H. Hill a life estate in certain particularly described real estate, on which was located the residence and store building formerly occupied by the said Hill and wife. They also conveyed and delivered to the said W.H. Hill, without reservation, all the general stock of merchandise contained in the said store building, all the books of said business, accounts receivable, and all property pertaining to said mercantile business, subject to all the unpaid mercantile accounts, and also all poultry, cattle, and farm tools belonging to the said estate of Mrs. Hill, and one Ford automobile.
In addition to the above, they agreed to pay or cause to be paid to the said W.H. Hill one thousand five hundred dollars in cash out of funds on deposit in the Merchants Marine Bank in the name of their deceased mother, and out of said funds they set aside the sum of three thousand dollars to be held and disbursed by the said bank in trust for the use and benefit of the said Hill, under the terms of a separate trust agreement copied in full in the contract. This trust agreement provided that the said bank, through its proper officers, should on the first day of each calendar month thereafter during the life of the said W.H. Hill pay to him in cash, or by deposit in said bank to his account, subject to check, the sum of one hundred dollars and charge it against the principal of said trust fund, and that the said bank should further pay to the account of the said Hill any amount necessary to provide him with medical attention and attention of physicians and nurses, in the event such services became necessary by reason of senility, sickness, or other disability. It was further provided that upon the death of the said W.H. Hill the trustee should first pay out of any balance remaining in said trust fund any unpaid balance of his funeral expenses not to exceed four hundred dollars, and then pay the balance of said trust fund, with any accumulations, to the said grantors, the children of Mrs. Alice E. Hill, or their heirs. By this contract the said W.H. Hill assumed the following obligation:
"And now in consideration of the property paid to and set over to my (W.H. Hill) separate interest and the establishment and performance of this trust, all as herein mentioned, I, the undersigned W.H. Hill, do hereby renounce, waive and relinquish all my rights in and to the estate of Alice E. Hill, deceased, wheresoever held or situated, arising either as heir at law or by virtue of intermingling of property or by virtue of the antenuptial contract above mentioned, except such property and rights as are herein set apart and conveyed to me. And for the consideration above named, I, the undersigned, W.H. Hill, hereby bargain, sell, and convey unto the above named parties of the second part, their heirs or assigns, share and share alike, all of the property, both real and personal and of whatsoever kind and nature, which I may own at the time of my death, and do hereby authorize said second parties, upon my death to take unto their possession all such property and to have and hold the same forever."
On the 14th day of November, 1934, shortly before his death, the said W.H. Hill executed a will providing for the payment of his debts and funeral expenses, and also for the payment of certain designated legacies, with remainder to a designated legatee, and appointing Fred Taylor executor of said will. After the named executor had qualified, he filed the bill of complaint herein, setting out in detail the facts above stated and the provisions of the said will and contract of settlement between the said Hill and his stepchildren, appellees herein, and alleging that the said heirs of Mrs. Hill, deceased, were asserting a claim and right to all the money and other personal property, which under the terms of the said contract belonged to the estate of W.H. Hill, and that the said funds and property were necessary for the payment of expenses of the last illness and funeral and other debts of the deceased, and legacies under the will, and praying that the executor be decreed to be entitled to the possession of said money and other personal property, and also the sum of four hundred dollars out of the trust fund for the payment of funeral expenses.
This appeal involves the construction of the above-mentioned contract, and particularly that part thereof whereby the said W.H. Hill undertook to convey to the children of his deceased wife all of the property, both real and personal, which he might own at the time of his death, and to authorize the grantees upon his death to take possession of all such property and hold the same. This instrument was executed in the form of a deed, and it is the contention of the appellant that the above-quoted provision thereof is testamentary in character, and can have no operation as a deed.
It seems clear to us that this provision of the instrument does not convey, and was not intended to convey, any specific interest in any property then owned by the grantor, W.H. Hill, to vest immediately or in the future. By it nothing was to take effect until after the death of the grantor. During the lifetime of the grantor he had the absolute power and right to use and dispose of the property as he saw fit, and by this provision he merely undertook to dispose of such property as he might own at the time of his death. In the case of Martin v. Graham, 114 Miss. 653, 75 So. 447, 448, the court had under consideration a very similar provision of an instrument by which the grantors undertook to convey "all the property, real, personal and mixed that we may die seized and possessed of," and it was held that since the instrument did not convey any specific interest in any property owned by the grantors at the time of the execution thereof, but only attempted to convey whatever property they might own at their death, it was testamentary in character and not valid as a deed. In Thomas v. Byrd, 112 Miss. 692, 73 So. 725, it was held that an instrument which did not convey any interest in property to vest immediately or in the future, but merely sought to cause whatever property the grantor might own at his death to vest when that event should occur, was testamentary in character, and could have no operation as a deed.
The doctrine announced in the two cases mentioned above is controlling here. The provision of the instrument under consideration herein does not purport to convey any present interest in any property, or any interest in any specific property to vest in the future, but merely undertakes to convey such property, if any, as the grantor might own at the time of his death. The provision of the instrument is therefore testamentary in character, and can have no operation as a deed. The decree of the court below will be reversed and the cause remanded.
Reversed and remanded.
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