95 So. 739 | Miss. | 1923
delivered the opinion of the court.
The appellant, as complainant in the chancery court, in his bill asks for a sale or division in kind of forty acres of land of which he claims to own in fee simple an undivided one-half interest. He alleges that he was devised this interest in the land under the will of Angeline E. West. The land was originally owned by William West, deceased, and Angeline West was the first wife of William, and the appellee, Lula E. West, is his second wife. Lula claims the land in controversy under a deed, and also under the will of William West. At the time of the marriage of William and Angeline she owned certain personal property, and
In 1908 'William West executed and delivered to his wife, Angeline, a deed to certain real and personal property. The material parts of the deed which concern the land in question are as follows:
“And for the further consideration I do hereby convey and warrant to my said wife, Angeline E. West, for and during the remaining period of my natural life the following described land situated in Bolivar county, Mississippi, to wit:
“North half of the northwest quarter (N. 1-2 N. W. 1-4), section 9, township 23, range 5 west, containing eighty acres more or less together with all the rents, issues and profits arising therefrom.
“At my death the title to the south forty acres of the above-described tract of land, viz, the south half of the north half of the northwest quarter of section 9, township 23, range 5 west, forty acres more or less shall vest in fee-simple title in my said wife, Angeline E. West, free from all the rights, title, claims, or demands of any of my other heirs, or of any person or persons whomsoever. . . .
“In the event of the death of my said wife before my death any and all interest and title in and to the said lands or any part thereof shall revert to me.”
It is the contention of counsel for the appellant that by this deed Angeline became vested, with a fee-simple title to the forty acres of land in question. This deed is perfectly plain and unambiguous. It conveyed to Angeline this land during the life of William, and, in case of his death before Angeline, then she was to be vested with the fee-simple title therein. It was only, however, in case of his death before hers that this title was to vest in her. This is made certain by the last clause in the deed, wherein it is stated that, in the event of the death of Angeline before William, all interest and title in the lands revert to William. This latter clause, however, was finnecessary,
Complying with this deed Angeline took possession of the property granted thereunder to her. Several years thereafter Angeline published her will, which is as follows:
“I bequeath all of my property real and personal to my beloved husband William West for the balance of his natural life except one lot or plot of land in Muskogee, Oklahoma.] the said lot after my death I bequeath to my adopted son, Robert Horred West. The crop of 1918 known as Angle West’s after rent has been paid, the expense of making crops and the Dr.s’ bill of the said Angie West the balance of the net proceeds of the crop be placed to the account of William West, my husband.
“After the death of William West, my husband, the forty acres deeded to me by the said William West which is a part of the homestead is to be divided equally between Robert Horred West and Henry Ridder West, my adopted sons, Henry West to hold claim on his part as long as he lives. After the death of Henry R. West the said plot of land twenty acres will go into the possession of my nieces, Martha Nelson and Patsy Nelson Smith.
“The two lots bought of Charles Banks located near Mound Bayou, a part of William Lewis’ tract, after the death of William West, my husband, one of the said Jots will become the property of Henry Ridder West as long as he lives, after the death of Henry Ridder West, my adopted son, the said lots will go to my nieces, Martha Nelson and Patsy Nelson feinith.
“The other lot bought of Charles Banks near Mound Bayou, a part of the William Lewis tract, after the death of William West, my husband, will become the property of K. R. Brown, his heirs to have and to hold deed and title to the said lot, I hereby appoint William West, my husband, administrator without bond.”
*890 ' “I declare this to be my last will and testament this 16th day of September, 1918.”
This will was witnessed by her husband, William, and another party named Brown. The following year Angeline died. The will was duly probated by William, was proved by him as a subscribing witness, and letters testamentary thereunder were issued to him. As such executor he took possession of this estate. Under this will William was devised and bequeathed for life all of the property of Angeline except a lot in Oklahoma. In this will Angeline, evidently believing herself the owner of the forty acres "of land in controversy, devised one half in fee simple to this appellant, a life estate in the other half to Hgnry R. West, and remainder to Martha and Patsy Nelson Smith. While Angeline only had a life estate (during William’s life) in this land, she evidently thought she owned it in fee simple. She was really devising in this will lands which at her death belonged to William. In other words, she had no title to devise in these lands.
William received under the will a life estate in all Angelina’s real and personal property except the one lot in Oklahoma. He did not renounce the will and elect to take under our statutes. On the contrary he probated the will, proved it as a subscribing witness, and attempted to execute its provisions as such executor. By probating the will, qualifying as executor thereunder, and attempting to act as such, he elected to take under the will, and by doing so he acquiesced in the devise thereunder of the land owned by him to these parties. It was his duty as executor to execute the will in all of its provisions, and by qualifying as such he made his election to take under the will, and therefore he must not only take what is devised him under the will, but See that the other devisees get the property devised to them by the testatrix. Allen v. Allen, 121 N. C. 328, 28 S. E. 513; Treadway v. Payne, 127 N. C. 436, 37 S. E. 460; Whetsell v. Louden, 25 Ind. App. 257, 57 N. E. 952. This rule is aptly stated in Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 1, section 464, p. 883 :
*891 “When a testator clevises an estate belonging to A. to some third person, and at the same time bestows a portion of his own property upon A., he undoubtedly must rely upon the benefits thus conferred-upon A. as an inducement to a ratification by A. of the whole disposition. To give A. the property which the testator was able to dispose of, and at the same time to allow him'to claim his own estate, which had been devised to the third person, by his own paramount title, would be to frustrate the evident intention of the testator. In the second case, where the testator, or other donor, erroneously supposes that the property which he undertakes to give away is in fact his own, the doctrine of election applies with the same force and to the same extent as in the former.”
This quotation from Pomeroy is quoted'with approval by this court in the case of Barrier v. Kelly, 82 Miss. 233, 33 So. 974, 62 L. R. A. 421.
It is contended by the appellee that there was no election to take under the will by William because under section 2001, Code of 1906 (Hemingway’s Code, section 1666),/ since the will was proved by William as a subscribing witness, the devise to him thereunder is void. This section is as follows:
“If any person be a subscribing witness to a will wherein any devise or bequest is made to him, and the will cannot otherwise be proven, such devise or bequest shall be void,, and the witness shall be competent as to the residue of the will as if a devise or bequest had not been made to him, and he may be compelled to testify. But if such witness would have been entitled to any share of the testator’s estate in case the will were not established, then so much of such share shall be saved to the witness as shall not exceed the value of the devise or bequest made to him in the will.”
It will be noted that the only devise or bequest made void under this section is the one to the subscribing witness whose testimony is necessary to probate the will. All of the rest of the will is valid and operative. It will further
In this event he would have taken this share under this section, but- the devise of this land Avould have been valid. It was his duty in the first instance to elect whether to take under the will or renounce the will, or, should the courts so adjudge, take under section 2001, Code of 1906 (Hemingway’s Code, section 1666). It is perfectly evident, however, under this record that he elected to take the estate devised and bequeathed him under the will, and as a matter of fact he did take this estate, and there Avas no contest of any kind, and that he did not take a share under this section of the Code.
William, having probated the will, qualified as executor thereunder, and administered the estate in accordance with its provisions, would be estopped if living to assert the invalidity of the devise to him. He offered the will impróbate as a valid will in every particular. He qualified as executor thereunder, and administered the estate in accordance with its provisions. Having done this on the one hand, he could not on the other hand claim it to be invalid in any particular. Branson v. Watkins, 96 Ga. 54, 23 S. E. 204.
In Utermehle v. Norment, 197 U. S. 40, 25 Sup. Ct. 291, 49 L. Ed. 655, 3 Ann. Cas. 520, it is stated: “As to what is the law relating to a party taking the benefit of a provision in his favor under a will, there is really no foundation to dispute the proposition that he thereby is precluded from, at the same time, attacking the validity of the very instrument under which he received the benefit.”
In that case there are many authorities cited and discussed.
In this case the surviving wife of William, Lula E. West, has no higher rights than would William if living. And since William elected to take under the will, he is estopped
The decree of the lower court will be reversed; title in fee simple to a one-half undivided interest in this forty acres of land is vested in this appellant under this will. The bill seeks, either a sale of the lands or that they be partited in kind. For a determination of this latter question, the cause is remanded.
Reversed and remanded.
