Parker v. Broadus

91 So. 394 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

Bufus Broadus, deceased, left a will at his death in the following words:

“I, Bufus Broadus, of Howison, county of Harrison, state of Mississippi, being twenty-one years of age, and of sound and disposing mind, make this my last will and testament.

“I give, devise and bequeath all my estate and property, real and personal, of every kind and nature, together with all right, title and interest in possession, reversion, or remainder, which I may have at the time of my death in, or to lands, tenements, hereditaments, or annuities, or rents charged upon, or issued out of them, or goods and chattels and personal property, including all moneys on hand in banks or due me, together with all life insurance, of every kind and nature due me, in fact everything which I may die possessed of unto my sons, W. R. Broadus and Charlie L. Broadus, to be owned and held or divided equally between them.

“I appoint as executor of this will U. B. Parker of Wiggins, in Stone county, state of Mississippi.

“In making this will and devising my property to my said sons I have in mind the fact that I have already deeded and conveyed to my other sons and daughters a great portion of my estate, both real and personal.

“In witness whereof, I have signed, published and declared this instrument as my last will and testament, this the 4th day of September, 1919.”

To this will was attached a letter to the appellant reading as follows:

“Howison, Miss., November 10, 1919.

“Mr. U. B. Parker, Wiggins, Mississippi — Dear Sir: Please pin this letter to my will. I want to show cause why I made this will. This is why I done so. My own children an espely the girls meding in my private business, going in my trunk, and taking my money and going to postoffice and git my letters and breaking them open an exposing them to the public, espesly Yelmy and her ill treatment is why I malee his will an I want it carried out to a letter just as it is worded.

“Yours very truly,

“[Signed] Rufus Broadus.”

After the death of said Broadus the beneficiaries named in said will and the other children of the deceased entered into an agreement, whereupon the beneficiaries in the will renounced the will and agreed with the other children of the deceased that the property should be divided equally between the said children, counting the advancements made to some of the children by the deceased in his lifetime so as to equalize the estate of each child with that received from the father’s estate by the other children. The agreement provided that the beneficiaries named in the will should be appointed administrators of the estate of the deceased, and the said beneficiaries filed a petition in the chancery court making said agreement an exhibit to the petition, praying for the appointment of themselves as administrators of their father’s estate. While the clerk was reading the petition of the applicants for administration, the appellant, who had been named as executor in the will by the deceased, appeared and presented a will duly proven by the subscribing witnesses and tendered a petition to be appointed executor and for letters of administration issued to him, tendering bond therefor. The clerk thereupon referred the matter to the chancellor for advice, sending all of the papers above referred to to the chancellor. The chancellor, set a day for hearing, and the parties appeared and presented their several applications to the chancellor, who, after hearing the whole matter, denied the appellant’s petition to probate the will and to be appointed administrator’, and appointed the applicants, who are appellees, administrators of the said estate. The appellant presented a petition for appeal with supersedeas, and the chancellor allowed the appeal, but refused the supersedeas. This appeal presents the question for decision as to whether a family settlement entered into between parties all competent to agree, including all of the beneficiaries of the will, can dispense with the probation of the will and renounce the will so as to make it ineffective as such. It is insisted that under the laws of this state a party has a right to dispose of his property as he pleases, and that his intention and purpose cannot be defeated by agreement between the beneficiaries of the will and his heirs at law to make a settlement of the estate contrary to the terms of the will, and that his letter attached to the will constitutes a codicil thereto, and that the testator desired the will to be strictly carried out.

It is true the testator has a right to dispose of his property in the manner that he did dispose of it and to make such disposition not prohibited by law as may suit his purpose. It is equally true, however, that he cannot compel the beneficiaries in his will to accept the will or the property thereunder devised and they have the right to renounce the will where it contains no trust or other limitation upon the property devised or bequeathed by the will, and when a will is renounced the effect of the renunciation relates back to the time the will became effective so as to make it void where, as in this case, the property is devised unconditionally and absolutely to the beneficiaries. There is a conflict of authority in the states of the union upon this subject. In 28 R. C. L. 357, section 359, the law upon this subject is stated as follows:

“Though in some jurisdictions an agreement to dispense with the probate of a will has been declared to be against public and void, in a majority of the decisions on the point it has been held that all the persons interested in a decedent’s estate may by agreement divide the estate among themselves, without probating such decedent’s will or administering the estate, and the validity of a contract having for its sole purpose the disposition of property in a manner different from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest, would seem to be freely conceded. Thus it has been held that all the parties in interest may agree to eliminate from a will a clause providing for survivorship among them. But an agreement to resist the probate of a will and procure it to be set aside so as to cut off the interest of one who is not a party to such agreement is against public policy. Nor does the right of all the parties in interest to set aside or disregard a will extend to the case of an active trust, for a definite term, created by a testator as he deems proper for the protection of his beneficiaries. A contract between the next of kin of a decedent that they will each have a certain portion of the estate does not amount to an agreement to divide the estate without probating the will.”

The other line of authorities follows what is known as the Wisconsin rule, following Dardis' Will, 135 Wis. 475, 115 N. W. 332, 23 L. R. A. (N. S.) 783, 128 Am. St. Rep. 1033, 15 Ann. Cas. 740. This state has not heretofore taken a position on this proposition, but we think the weight of authority and the better rule is that stated in 28 R. C. L., above stated, and the authorities referred to in the case note.

As stated by the chancellor.

“It is difficult to perceive why the valid washes of one of the dead should be more obligatory upon us than the equally valid, and in this case more generous, wishes of all the living. A testator may confer by will upon an heir a larger share of his estate than the law Avould give, but the testator possesses no potentiality to compel the heir to accept it, nor may the court do so for him. There could be no policy of the law, or public welfare or of public interest that could rise above that which would conserve and insure harmony, peace, and good wall among the living members of a numerous family. The family settlement here is fair, equitable, and commendable from every standpoint of refinement of feeling and of unselfishness of affection, and it ought to stand.”

The judgment of the court wall therefore be affirmed.

Affirmed.