26 Fla. 449 | Fla. | 1890
On the former appeal in this case, 20 Fla., 495, it was held that if the intended grantee in a deed is not named, he should be ascertained by description, so as to distinguish him from all other persons, and that a deed purporting to set apart, distribute and convey a described lot of land “to the estate of Daniel W. Hart,” he being dead, does not pass the legal title to his niece, his devisee entitled to his estate.
The remaining question, therefore, as to title shown is, says the opinion, p. 50Q, whether plaintiff, Spratt, proved
In response to these questions, it is observed (pp. 504, 505,) that the description of the grantee as “the estate of Daniel W. Hart ” in the deed, is too vague and uncertain to constitute a competent grantee at law; that there is no grantee by name or otherwise, and that the Court was without the most remote reference to the will of Daniel W. Hart or anything by which it could be contended that his niece, Mrs. Dearing, was the grantee in the deed from the executors of Isaiah D. Hart, and that the will of Isaiah D. Hart was not in evidence to identify his legatees or devisees ; that the grant was to an estate, without definition of this expression, and that the executors, (meaning of course, those of Isaiah D. Hart,) connect nothing with the description by way of reference to enable identifying evidence tg
This Court had before it, when it made the above decision, the “ deed of distribution of the executors of Isaiah D. Hart,” of June 16, 1866, and the will of Daniel W. Hart executed August 15, 1865, and admitted to probate on the 15th day of the following December, by which he divised his property to his niece, then Miss Lula Spear, and requested his executors to act as trustees of the same and keep it in their possession until she should become of age, and then to deliver it to her personally. On the subsequent trial in the Circuit Court, the plaintiff, Spratt, introduced, in addition to these instruments, the will of Isaiah D. Hart, and the proceedings in the Probate Court upon which the deed of his executors purports to be founded.
The will of Isaiah D. Hart was executed March 20,1861, and admitted to probate the 27th day of the following September, and after making special bequests and devises, provides by its ninth item as follows: “ All the remainder of my estate to be equally divided between my children, Ossian, Laura, Daniel, Julia and Mary, except such as I have already given and bequeathed in this my last will and testament, or any that I may hereafter by codicil or codicils made by me.”
By a codicil made on the 10th of April, 1861, he directs that his daughter Laura have her share of the estate, when it is divided, set off to her in other kind of property thap
The Probate Court proceedings upon which the “ deed of distribution ” is founded, are in substance, as follows: The executors of Isaiah D. Hart, filed a petition on the 16th day of November, 1865, showing, among other things, some indebtedness of the testator, and alleging that there was a large number of vacant town lots in the city of Jacksonville, for which there was great demand, and that by a sale of these lots, money could be raised to meet all the liabilities of the estate, and the balance be more equitably distributed amongst the legatees by their bidding for their respective shares, than by any method of distribution, and that a large part of the real estate belongs, under the will, to three minors to be distributed to them, and praying an order of sale. The Judge of Probate being absent from the county, the Clerk of the Circuit Court, acting under the statute of January 8, 1848, chapter 154, made an order on the day the petition was filed, reciting that thirty days’ notice of the application had been given in a newspaper published in the city, and adjudging that the executors should sell the real estate mentioned in the petition. On the 16th day of January, 1866, the executors filed a report to the effect, that after advertising the sale of the lands for thirty days, in a newspaper published in the city, they proceeded on the first Tuesday in the said month to sell the same ; that Laura Farrer was one of the legatees, and a resident of South Carolina, and died, as they were informed and believed, four days after the death of the testator, leaving-two minor children, George and Laura, residing
The “ deed of distribution,” after reciting the above order of November, 1865, as one made to sell the vacant town lots for the purpose of paying the debts of the deceased, and distributing the estate more equally among the legatees mentioned-in the last will and testament, and the report of sale, and the order of the Judge of Probate therein, reads thus: “ Now, know ye, that we, Ossian B. Hart and Ozias Buddington, executors of the last will and testament of said Isaiah D. Hart, deceased, by virtue of said last will and testament, and of said order and decree of said Court of Probate, do hereby set apart, distribute and convey unto the estate of Daniel W. Hart, deceased, who was one of said legatees, the following described lots and parts of lots,” describing them. The lands are all those reported by the executors to have been bid off by Caulk, administrator, for the estate as above set out, as well as some of those reported to have been bid off by the executors, the lot in controversy, lot No. 2 of block 134, being included, as in fact was the entire block in the former class.
In view of the new features introduced into the case since the former decision of this Court, it is not necessary to say anything about the incapacity of the so-called deed of distribution to convey a legal title to Mrs. Dearing.
The legal title to the land in controversy is shown to have been in Isaiah D. Hart at the time of the execution of his will, and does not appear to have been parted with by him prior to his death. His will disposed of the residue of his estate, of which the land in question was a part, in the manner indicated above. It is said in the opinion in the former case, as is shown above, that the legal
Daniel W. Hart, one of the devisees, died more than four years subsequently to his father Isaiah, leaving the will by which he devised his estate to his niece. There is nothing in this will to raise a doubt that it transferred to her the interest with the title thereto, which he had in his father’s estate. The request that his “ executors act as trustee of the property, and keep it in their possession until she becomes of age, and then deliver it to her personally,” has no effect upon the transfer of the title to her.
It is evident that one purpose of the probate proceedings was to distribute the real estate among the surviving devisees and those entitled to the interests of the devisees who had died since the testator, and that the public sale was adopted as a mode of ascertaining the value of the lands to the end that they should be “ equally divided ” as contemplated by the will. The language of the order of the Court does not seem to have contemplated a conveyance of land to anyone except such purchasers as were strangers to the estate, but only a distribution or equal division of the land under the will, or an ascertainment of the share or portion that each devisee, or his or her representative, or representatives, should hold in severalty, and a setting apart of the
In view of the fact that the will of I. D. Hart shows that D. W. Hart was a child and devisee, and that in the probate sale proceedings William Caulk, the administrator cum testamento annexo of Daniel W. Hart, represented the latter’s estate in the manner indicated in the report of the sale, all of which instruments and proceedings, and the deed of distribution, connect themselves, it is clear that the purpose of the deed, considered with reference to the other proceedings, was to set apart the lands described in it as the separate share which the person or persons entitled to hold under Daniel W. Hart should take in severalty. -The foreclosure proceedings contained in the record further show that about eleven years after the date of the deed of distribution, the devisee of Daniel W. Hart, and her husband, Mr. Dearing, mortgaged the lot in question and nineteen other lots, with parts of two lots, covered by the deed of distribution, and that upon the maturity of the indebtedness secured thereby, the mortgage was foreclosed and the mortgaged property sold to appellee, the master’s deed to him bearing date January 16th, 1879. A legitimate inference to be drawn from the execution of this mortgage is acceptance and ratification by Mrs. Dearing of the partition intended by the proceedings.
Whether or not the partition proceedings were originally legal as against an attack by either of the parties beneficially
II. In the course of the trial the Court permitted plaintiff to introduce as evidence the bill of exceptions taken on the first trial of the cause, and purporting to contain the evidence of Caulk mentioned above and who had died since the first trial, to prove to the jury what Caulk had testified to on the former trial. The law, as we find it, does not justify this action of the Court. Notes of the testimony taken by a Judge on the trial are not per se evidence to establish what was sworn to by a deceased witness. They can only be resorted to as a memorandum to refresh his memory the same as in the case of any other witness. Miles vs. O’Hara, 4 Binney, 108; Schafer vs. Schafer, 93 Ind., 586; Asher vs. Mitchell, 9 Ill., App., 335; People vs. Chung, Ah Cheu, 57 Cal., 567. The evidence of a witness as set forth in a bill of exceptions is in itself nothing more than a certificate of the trial Judge or a subsequent statement by third parties, without the sanction of an oath, of what the testimony was, and it is not admissible of itself to'prove the testimony of a deceased witness. Greenleaf on Evidence, Sec. 166; Breeden vs. Feurt, 70 Mo., 624; Kirk vs. Mowrey, 24 Ohio St., 581; Davis vs. Cline, 96 Mo., 40; Jaccard vs. Anderson, 37 Mo., 95; Scoville vs. H. & St. J. R. Co., 94 Mo., 86; Robinson vs. Lane, 22 Miss., (14 S. & M.) 161; Shotwell vs. Hamblin, 23 Miss., 156; Dwyer vs. Rippeltoe, 72 Texas, 520; Reed vs. State, 81 Ga., 760; Carpenter vs. Tucker, 98 N. C. 316; Stern vs. People, 102 Ill., 540; Mott vs. Rumsey, 92 N. C., 152; Pillsbury &c, Ry Co., vs. McGrath, 115 Ill., 172; Lipscomb vs. Lyon, 19 Neb., 511;
In view of the admissibility of a bill of exceptions in aid of memory under the above authorities, there can hardly be any difficulty in proving by living witnesses, under oath, who heard Caulk testify, what his testimony was. Assuming that an affirmative showing of inability to prove the testimony of a deceased witness, otherwise than by a bill of exceptions per se, will under any circumstances render such proof admissible, the fact is that no such showing is made by the record before us, and hence nothing further need be said on the point.
For this error the judgment must be reversed, as in view of the testimony of Caulk, thus introduced, both in regard to the possession under the deed of distribution, and as contributing to the weight of testimony against Simmons on the issue of title in Robinson by adverse possession, upon which point there is conflict of testimony, the error cannot be said to be one without injury. Smiths vs. Shoemaker, 17 Wall., 630, 639; Deery vs. Cray, 5 Wall., 795; Moores vs. National Bank, 104 U. S. 625, 630; Gilman vs. Higby, 110 U. S., 47, 50.
The judgment will be reversed and the cause remanded for proceedings not inconsistent with this opinion.