No. 3,527 | 8th Cir. | Oct 27, 1911
Appellants, as devisees of Henry M. Howell, deceased, brought this suit to enforce a forfeiture of Patrick Davis’ right to purchase a certain tract of land, situated in Beadle county, S. D., which belonged to Howell in his lifetime, and to secure an accounting against Julian A. Du Bois, administrator of the estate of Addie Howell, also deceased, who was the widow of Henry M. Howell. The defendants, Patrick Davis and Julian A. Du Bois, deny appellants’ right to any relief, and defendant Davis filed a cross-hill to quiet his title to the land in question and for general relief. The cause came on for hearing on the pleadings and proof, and the trial court denied any relief to appellants, but rendered a decree in favor of Davis on his cross-bill. This appeal followed.
The proof shows that Davis took possession of the land as required by the contract, and has remained in possession until now. Addie Howell, upon the death of her husband, qualified as executrix of his estate. In 1904 she became non compos, and the defendant Julian A. Du Bois was appointed guardian of her person and estate. After-wards, on May 3, 1907, Addie Howell died, and the defendant Du Bois became administrator of her estate, and is now acting as such. Since Davis took possession of the tract in question, he has paid over to Addie Howell in person, or to Julian A. Du Bois as her agent or guardian, or as administrator of her estate, the full amount, either in wheat or money, of the purchase price of the tract, and in all other respects has complied with the terms and conditions of the contract, to -the full satisfaction of Addie Howell or her personal representatives. This was all done by him prior to the expiration of the 10-year period fixed in the contract, and prior to the beginning of this suit. The learned trial judge, after stating the foregoing facts, said:
“All matters arising out of the contract, so far as the obligation of Davis is concerned, have been satisfactorily settled between Davis and the personal representatives of Addie Howell, and complainants have now no complaint against Davis; but as the money paid by Davis and the wheat turned over by him, or its value, is still in the possession of Du Bois, they ask this court to compel the repayment of said moneys to complainants, on the theory that the contract of sale, although made subsequent to the will of Henry M. Howell, did not revoke that will so far as the land in question is concerned.”
And this is the present contention of the complainants’ counsel. They no longer insist upon a forfeiture as against Davis, but contend that the money received by Addie Howell from Davis in satisfaction of his obligation to purchase the land stands in place of the land, and they are entitled to recover it as remaindermen, under the will of Howell. We are unable to assent to this contention. The will, although executed some time before the death of Howell, was ambulatory. It conferred no right of property which was not subject to
“An agreement made by a testator, for the sale or transfer of property disposed of by a will previously mude, does not revoke such disposal; but tbe properly passes by the will, subject to tbe same remedies on the testator’s agreement, for a specific performance or otherwise, against the devisees or legatees, as might be bad against tbe testator's successors, if tbe same bad passed by succession.”
Unfortunately no construction so far as we are advised has been placed upon this section by the Supreme Court of South Dakota. But the legislative intent seems'to be that property under the circumstances stated shall pass “subject to the same remedies on the testator’s agreement as might be had” against the heir at law. Applying it to the case before us, the land in question passed to the devisees, subject to the right of Davis to purchase according to the agreement. If he should perform his covenants and pay for the land accordingly, no beneficial title or interest would pass by the will. If, on the contrary, he should fail to perform his covenants, the devisees would take good title.
This construction is in accord with the manifest intent of section 1028 of the same Civil Code, which is in pari materia with section 1025. It provides:
“If tbe instrument by which an alteration is made in tbe testator’s interest in a thing previously disposed of by his will expresses bis intent that it shall be a revocation, or if it contains provisions wholly inconsistent with tbe terms or nature of tbe testamentary disposition, it operates as a revocation*160 thereof, unless such inconsistent provisions depend on.a condition or contingency, by reason of which they do not take effect.”
In other words, if there be a contract or other document altering the condition of a testator’s property after the making of his will, it will constitute a revocation, if such be the intent of the testator, and especially if the altering instrument be inconsistent with the provisions of the will.
Bearing in mind that Addie Howell, wife of the testator, was given by the will a life estate in the land sold to Davis, it is very clear that the contract, disposing of the land in such a way as to destroy her life estate, was totally inconsistent wifh an important provision of the will. This inconsistency existed! and was necessarily apparent to the mind of Howell at the time of the sale of the land to Davis, and in our opinion disclosed an intention on his part to withdraw the land from the operation of the will.
Section 1028, above quoted, is substantially like the provisions in force early in the state of New York on the subject of revocation of wills. 2 Rev. St. [2d Ed.] pt. 2, tit. 1, art. 3, c. 6, §§ 47, 48. In view of this statute the Court of Appeals of New York, in the case of McNaughton v. McNaughton, 34 N.Y. 201" court="NY" date_filed="1866-01-05" href="https://app.midpage.ai/document/mcnaughton-v--mcnaughton-3583262?utm_source=webapp" opinion_id="3583262">34 N. Y. 201, considering facts similar to those now under consideration made this observation:
“Unquestionably, the sale of the farm was a revocation of the devise to the wife of an estate therein during her life. To that extent at least, it was inconsistent with the plan of the will.”
And the court held that the sale of the land after the execution of the will was a revocation of the will pro tanto. See, to the same effect, Ametrano v. Downs, 170 N.Y. 388" court="NY" date_filed="1902-04-08" href="https://app.midpage.ai/document/ametrano-v--downs-3632288?utm_source=webapp" opinion_id="3632288">170 N. Y. 388, 63 N. E. 340, 58 L. R. A. 719, 88 Am. St. Rep. 671.
The Supreme Court of the state of California, treating of a section of its statutes (section 1304, Civil Code 1909) identical with section 1028, supra, in the case of In re Benner’s Estate, 155 Cal. 153, 99 Pac. 715, reached the same conclusion; the court saying, among other things:
“The ease, then, presented is one of a devise of land, * * * and a sale of that land before the death of the testator. Such a sale being wholly inconsistent with the devise, operates as a revocation of it, as contemplated by section 1304, Civil Code.”
The cardinal rule to be observed in tlie construction of wills is to ascertain, from the language employed by the testator and from any other lawful and available sources, his real intention. Applying this rule of construction, under applicatory law to the present case we entertain no doubt that the testator, Howell, in the desire to make abundant provision for his wife, intended by the contract with Davis to enlarge her participation in his estate by converting a tract of land to which she had been given a life estate only into personal property, thereby bringing it under the provision of the will bequeathing to her all his personal property, and giving to her the full value of the tract in question instead of a life estate in it. The substantial provisions
Our conclusion is that the contract with Davis was so inconsistent with the nature and terms of his will as to amount to its revocation so far as the land in question is concerned.
The decree is affirmed.