74 So. 330 | Miss. | 1917
delivered the opinion of the court.
The appellant, Mrs. Nannie Cox, filed her bill in the chancery court of Tippah county against Charles Reed, the appellee, in substance alleging that appellant and appellee are sister and brother, and that their father, Allen Reed, died seised and possessed of the lands involved in this controversy. The bill further alleges that Allen Reed and his wife in 1901 executed an instrument in writing which was intended as a will, devising the* land in controversy to appellee; that this instrument was not properly witnessed as a will, and is therefore void-; that the deceased, Allen Reed, left surviving his as heirs and distributees the appellant and the appellee. It then prays that the lands involved in this controversy be sold for a division of the proceeds. - The answer of appellee denied that the instrument executed by Allen Reed was
The sole question presented to this court for decision is whether or not this instrument he a deed or whether it he testamentary in character. The instrument reads as follows:
‘ ‘ State of Mississippi, Tippah County.
“Be it known that for and in consideration of the natural love and affection I have for and do bear toward Charley M. Reed, my son, and for one dollar cash in hand paid to us the receipt of which is hereby acknowledged, I hereby grant bargain sell and convey and warrant to. him and to his heirs and assigns forever the following described property in said county of Tippah, Mississippi: All that portion of the north-east quarter of section sixteen in township three of range three east except what has heretofore been sold off. This deed shall take and be in effect on and after the death of myself and wife.
“Witness our signatures the 29th day of November, 1901.
his
“A. X Reed. mark her
“Mae,y AN X Reed. mark
“State of Mississippi, Tippah County.
“Personally appeared before me, E. C. McElwain, a justice of the peace of said county and state, ..the within-named A. Reed and his wife, Mary An Reed, who acknowledged. that they signed and delivered the foregoing instrument on the day and year therein mentioned.
“Given under my hand this 29th day of November, 1901. E. C. McElwain, J. P.
*494 “State of Mississippi, Tippah County.
“I, J. W. Street, clerk of the chancery court, do hereby certify that the foregoing deed was filed for record the 6th day of May, A. D. 1913, at 9 a. m., and was recorded the same day. This the 6th day of May, 1913.
“ J. W. Steeet, Clerk.”
We think the intention of Allen Reed and his wife, who executed this instrument, can be ascertained from a reading of the instrument, which is plain unambiguous. It therefore follows that it was error of the lower court in admitting parol testimony relating thereto. Jones, Commentaries on Evidence, vol. 3, section 454 et seq.
In Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147, the court, in discussing the difference between a deed and a will, summarizes the rule as follows:
“In the one case [a deed] the conveyance takes effect in praesenii, to a certain extent; in the other it. has no effect whatever until the death of the testator.”
See, also, Sartor v. Sartor, 39 Miss. 772.
In the case of Cunningham v. Davis, 62 Miss. 366, this court says:
“If by it any present interest was vested it should be held to be a deed. If it was not to havé any operation or effect until the death of the maker it could not be treated as a deed, although it was so named, and is in form a deed.”
This court in the case of Simpson v. McGee, 73 So. 55, a case in which the instrument construed, in legal effect, is similar to the one above quoted, had the following to say:
“It is clear from the language hereinbefore quoted from this instrument that it was the donor’s intention that the instrument itself should not take effect, for any purpose, until after her death; consequently under the rule announced in [citing authorities] it must be held to be testamentary in character, and therefore not a deed.”
See, also, Thomas v. Byrd, 73 So. 725.
Reversed and remanded.