Cameron v. Watson

| Miss. | Apr 15, 1866

IIaNDY, 0. J.^

delivered the opinion of the court.

■■.This is an appeal from the Probate Court of Bolivar county. An issue of devismit vel non was made up in that court oh the petition of D. S. Cameron, executor of George G. Torrey, deceased, filed to contest the validity of the will of Mrs. Prances M. Torrey, who was the wife of said G. G. Torrey, and which was propounded for probate in the said court. The issue wras made up, and tried before a jury, who found a verdict establishing the will; and a motion to set aside the verdict and grant a new trial was overruled by the court, and a bill of exceptions taken thereto.

It appeared in evidence that an ante-nuptial contract had been entered into between the said G. G. Torrey and the testatrix (then Mrs. Prances M. Walker), dated November 5, 1857, which recited that the said Prances was seized and possessed of a large and valuable estate, real, personal, and mixed, situate and being in the State of Arkansas, and that said Torrey was seized and possessed of a considerable estate in the State of Mississippi; and that a marriage was intended shortly to be had and solemnized between the said parties, and that it was agreed by them, that, notwithstanding said marriage, they should have no claim whatever, the one upon the aforesaid separate estate of the other, or upon the rents, issues, and profits thereof, but the same should remain, continue, and be to them respectively and severally, or to such uses as they should think fit severally to appoint; and therefore the said Prances, with the consent of said Torrey, Conveyed all her estate in the State of Arkansas, of what kind soever, and wherever situated, to Gaines in trust, to permit her to keep and enjoy the said estate, with the rents, issues, and profits thereof, to her sole and separate use, or to the use of such person or persons as she, by writing under her hand, or by last will and testament, may appoint, and that said Torrey should not intermeddle therewith; and that the same or any part thereof should not be liable to his control, debts, or disposal, but should remain wholly in the power, and at the disposal of the said Prances; and in further trust, that the said trustee would from time to time convey said estate, or any part thereof, to such persons as she should appoint by writing under her hand, or by an instrument in the nature of a last will and testament, with full power on her part, should said estate, or any part thereof, be sold during her life, and appointed by her to be conveyed, to receive and dispose, for her own proper use, of the moneys arising from such sale or sales, and that said Torrey should not intermeddle therewith, and that the same should not be liable to his control, debts, or disposal, but should remain wholly in her power and disposal, to use as she pleased dining life, and to dispose of at her death by last will and testament, or an instrument of appointment in the nature thereof. And the said Torrey thereby covenanted that her estate, and all the income, rents, profits, and proceeds thereof, should at all times thereafter remain and be, to and for the uses and purposes before expressed, and that said Frances might from time to time dispose of, according to her will and pleasure, said increase, rents, income, and profits, and her estate as therein provided for. And the said Frances released all claim on the estate of said Torrey.

This contract describes the said Torrey as being of the county of Bolivar, State of Mississippi, and the said Frances as being of the county of Chicot, in the State of Arkansas; and it was duly recorded in the proper offices in Bolivar county and in Chicot county.

The will propounded purports to be an instrument of appointment in the nature of a last will and testament, made in virtue of the foregoing deed of settlement, and bears date 25th March, 1861; and its execution and publication in Chicot county, Arkansas, and the attestation of the subscribing witnesses, so as to make it a valid will both a& to real and personal estate, were duly proved. It was admitted, on the trial, that G. G. Torrey and Frances M. Torrey had no issue born of this marriage; that, she had no child at the time of the marriage to Torrey; that, when the paper propounded as a will was executed, she resided in this State; and that at the date of the execution of that paper, and when she died, she was the wife of G. G. Torrey; that he survived her, and that he resided at the time of his marriage witli Frances M. Torrey, in Bolivar county in this State, and conthmed so to reside up to the time of his death.

It is conceded, by counsel for the appellant, that the ante-nuptial contract in this case conferred on Mrs. Torrey the power to dispose of her separate property, by will or otherwise, according to the provisions of that agreement; but it is insisted that her power to do so was limited by the terms of that instrument to her separate property in Arkansas, and to the “ income, issues, rents, proceeds, and profits” thereof, and that she had no power, under the agreement or otherwise, to dispose of real or personal property in this State; that, as it was not shown that there was any property in this State that she had the power to dispose of, under the agreement, the will should not have been admitted to probate in this State for any purpose.

This position cannot be maintained to the extent stated. It appears, by the evidence, that Mrs. Torrey had her domicile in this State, from the time of her marriage to G-. G. Torrey to the time of her death, and that she clied here. The general rule is, that the capacity of a testator to make a will, and the rules regulating the disposition of personal property, depend on the law of the domicile; and, to that extent, that the matter of pro-hate belongs to the tribunal of the domicile; where, therefore, the testator has, by law, the general power of disposition by will, it is immaterial, with reference to the -question of probate, whether there was property in this State' to be affected by the will or not; for, in such a case, the matters for determination would be, whether the testator was competent, by our laws, to make a will, ánd whether it was executed according to those laws. If these facts were found in favor of the will, it would, of course, be admitted to probate here; and it would affect all personal property embraced in it, wherever situate, though it would not convey real estate situate in another State, unless executed according to the laws of that State.

This is the rule in cases where a general power of disposition by will exists. Does a different rule prevail where the power of disposition is limited to particular circumstances or conditions on which its exercise depends ?

When a will is propounded, in such a case, the court finds that the party had not the general power to make it, and that its validity depends on a special grant of power to make it, under particular circumstances; and the question must necessarily arise, whether those circumstances exist. In this case, the power was not general, but special, and restricted to property in Arkansas and its proceeds. ' The first question, then, that must arise on the application to probate, would be as to the competency of the testatrix to make a will, and it would be found that that power was derived solely from the ante-nuptial agreement, and was limited by that agreement to her property in Arkansas and its proceeds. / The court would find, on examination of that instrument, that the testator was empowered to dispose of her lands and personal property in Arkansas, and that the will had been executed and was proved according to the formalities required by our laws. It would have jurisdiction, by reason of the domicile, to give full effect to the will as to'the personal property in Arkansas, embraced in the deed of settlement, wherever it might subsequently be removed, and the proceeds of the real and personal estate embraced therein, wherever situate; and, of course, the probate would be granted. The probate, though general, would give effect to the will only so far as the testator had power, by virtue of tlie ante-nuptial agreement, to dispose of the property mentioned in it.

It is clear, therefore, that the court had jurisdiction to grant probate of the will as to the personalty and the proceeds of the lands mentioned in the deed, wherever they might be found; and that it is no objeq ion to its exercise, that the property was not in this State.

It is next objected tL t the probate was general, and that it did not restrict the open fion of the will to the property in Arkansas, and its rents, issues, profits, and proceeds.

But this is immaterial. The propriety of the probate must be tested by its legal effect; and that clearly was confined to the specific property mentioned in the deed of settlement, and , the rents, issues, profits, and proceeds of it. When a will is propounded for probate, devising lands in another State, and personalty, it is customary and proper to admit it to probate generally, though it may not be executed in form, and cannot have the effect to convey lands in another State, as required by the laws of that State. So, when a will contains dispositions, some of which jtfMtoffiid, and others illegal and void, if the will be execute^PPUpoved according to the requirements of law, it should be admitted to probate as a duly executed and established will, leaving its legal .effect to be afterwards determined. Lush v. Lewis, 32 Miss. 300. And this is especially the case in the trial of an issue of devismit vel non; for such an issue involves no other questions but the competency uf the testator to make the will, and whether the instrument was executed with all the formalities required by law, and in all respects under such circumstances as to make it the free and true last will and testament of the testator. Questions of its construction and legal effect are plainly not embraced in such an issue, and should be left for subsequent adjudication.

The last ground of error .-insisted on is, that the instructions of the court were contradictory-to each other, so that the jury were left without any proper rule to guide them in determining the issue.

There is no error in the instructions except in the second, and that was given at the instance of the appellant, and he cannot complain of it. But no injury was done by it, for the verdict was correct, notwitstanding the erroneous instruction. In such a case the error in the instruction is not ground for granting a new trial, where it is manifest that the verdict was correct, upon the facts appearing in the record. Fore v. Williams, 35 Miss. 533" court="Miss." date_filed="1858-10-15" href="https://app.midpage.ai/document/fore-v-williams-8257401?utm_source=webapp" opinion_id="8257401">35 Miss. 533.

Let the decree be affirmed, with costs.