Gilliam v. Chancellor

43 Miss. 437

• Court: Mississippi Supreme Court
• Decided: October 15, 1871
• Status: Published

Opinion

Simrall, J.:

Three important points are made by counsel: First, whether as claimed for the plaintiif in error, the jurisdiction of the probate court, over the bequest to Mr. Gilliam is exclusive. Second, is the legacy a satisfaction or performance, of the ante-nuptial settlement, so as to put Mrs. Gilliam to her election. Third, has she lost the benefit of the marriage settlement, because the instrument is unstamped.

1st. The argument is, that Mrs. Gilliam, had instituted a proceeding in the probate court, against the executors to secure the legacy of $5,000; a tribunal which had, to the exclusion of the chancery court, jurisdiction to order its paymeut, and it was therefore an usurpation in the chancery court to stay that suit by injunction, and to withdraw from it, to itself, the subject matter in dispute.

It was declared in Blanton v. King, 2 How., 856 and Carmichael v. Brown, 3 How., 252, followed by a long train of subsequent adjudications, that the jurisdiction conferred by the constitution on the probate court, was exclusive; so exclusive that the chancery court was ousted of cognizance over a large class of subjects which therefore belonged to it.

From 1832 to 1860, our books are full of cases attempting to define the boundary which separated the two courts. In truth, no subject has so much perplexed and embarrassed the appellate court as this. The chancery had unquestionably the cognizance of the rights of Mrs. Gilliam under the marriage contract, and would draw to itself all collateral subjects necessary and proper to be considered in order to a full, complete, and final adjudication of those rights. If, therefore, it was as contended by the executors, that the legacy was an ademption of the portion provided by the ante-nuptial settlement, it would not be possible to settle the claims of Mrs. Gilliam under the settlement, without also ascertaining the extent to which, if at all, these would be modified, or affected by the will. It would be altogether proper, in this aspect of the case, to stay the proceedings in the probate court', until the point, were canvassed in the chancery suit. Mrs. Gilliam insisted that she was entitled to the benefit of both legacy and marriage settlement. The executors, on the contrary, assert that the former was in performance or satisfaction of the latter. The powers and jurisdiction of the chancery court were broader, more pliant, and flexible in its modes of redress, fully competent in one litigation, to adjudicate finally in respect to both the settlement and bequest, and could, therefore, well assume, as it did, entire cognizance over the subjects.

2d. Is Mrs. Gilliam entitled to the marriage contract and the legacy ? Is the one an ademption in full, or pro tanto of the other ? The general presumption is against double portions. When the object appears to be to make a provision, and that object has been effected in one instrument, it should not be suspected that a like provision, in a second instrument, was intended as a repetition of the first. If the benefit to the donee be different in species, the presumption of satisfaction will not arise. Powell on Devises, 433, note 4. It may be rebutted by the acts and declarations of the testator. 2 Story Eq., § 1102. To make this presumption arise, the thipg substituted, should not be less beneficial, either in amount, certainty of time of enjoyment, or value, than the thing due or contracted for. 1 Vesey, 521. In cases of satisfaction, the presumption will not hold, when the thing is less valuable than the thing contracted for, since satisfaction implies the doing of something equivalent, and the presumption is much weakened when the thing substituted is not equivalent to the thing contracted for. If the thing done can be considered as a part performance of the thing contracted for, it shall be so taken.

In Litchmen v. Earl of Carlyle, 3 P. Williams, 211, there was a covenant to settle lands of a certain value; a subsequent purchase of lands of a smaller value, which were at thecovenantor’s death undisposed, of, and which went by descent to the covenantee, shall be intended as a part performance, as it may be presumed, he intended to purchase more landsafterwards, and settle the whole according to the covenant.

In Blandy v. Widmore, 1 P. Williams, 423, the agreement was, if B, the intended wife-, should survive A, her intended husband, A should leave B £620, and A accordingly covenanted with B’s trustees that his executors, within three months after his decease, should pay B £620, if she should survive him. A died intestate, upon which B, the wife, by the statute of distribution, became entitled to a moiety of the personal estate, which was much more than the £620.

The Lord Chancellor said he would not take this covenant as broken ; the agreement was to leave the widow £620; she gets, as distributee, much more than that, which shall be accounted as satisfaction of, and including' in it, her demand, by virtue of the covenant.

In Wilcox v. Wilcox, 2 Ver., 638, a father covenanted to settle an estate of £100 per annum on his eldest son, and left lands of the value of £100 per annum, to descend upon his son. This was held to be a satisfaction of the covenant, to make the settlement.

Goldsmidt v. Goldsmidt, 1 Swann, 216, was very carefully considered. By articles of agreement made in contemplation ' of marriage, Abraham Goldsmidt covenanted that in case he should die in the life-time of his wife, his executors or administrators should, within three months next after his decease, pay to Martha Goldsmidt, her executors, etc., £3,000. The will authorized the executors to divide the property of all kinds and descriptions, in such ways, shares, and proportions as to them should appear right. The executors never made division, and it was agreed that the estate fell for its disposition under the statute of distributions.

The master of the rolls declared the rule to be settled that the distributive share of the widow, in case of absolute intestacy, is considered as performance of a covenant by which the husband had undertaken that she should receive a fixed sum at his death, provided, that her share is equal to that sum. The question is at rest. These marriage settlements do not stand on the footing of ordinary debts. During the life of the husband there is no breach of the covenant— no debt. The case reposes on the ground that the widow has received, under the statute, what was stipulated to be paid her in the articles. It is a question of performance if the distributive portion equals or exceeds the amount secured to her by the articles. In cases of testacy the question is one, nakedly, of intention, on the part of the testator, that the legacy shall be in lieu or satisfaction of the covenant. The rule was said by the equity judge in this case, to have been established for a hundred years. Subsequent to this, Lord Eldon in Guthshore v. Chalie, 10 Vesey, Jr., went into the cases, and considered the principle as put at rest by the authorities.

In a late case, reported in 5 Mylne & Craig, 29, Lord Cottenham said all the decisions upon questions of double portions depend on the declared or presumed intentions of the donor. The presumption in equitj^ is against double portions, because it is not thought probable, when the object appears to be to make a provision, and that object has been effected by one instrument, that the repetition of it in another, should be intended as an addition to the first. It was also held in this case that the fact of whether the provision of the will was a performance or satisfaction of an antecedent covenant to provide a portion, or whether it was a gift, might be proved by internal evidence furnished by the will.

In Loyd v. Harvey, 2 Rus. & Mylne, 310 (13 Eng. Ch. Rep., 51), it was ruled by the master of the rolls, that parol testimony (which in that case were the declarations of the 1 estator in his last illness) was admissible for the purpose of showing whether the legacy was the bestowment of a gift, or the ademption of the covenant.

Sir James Wagram, vice chancellor, an equity judge of great learning, and accustomed to much study and investigation, in forming his judgment in Kirk y. Eddowes, 3 Hare, 509, on a review of the cases, came to the conclusion that parol evidence was to he received, not for the purpose of affecting the will or its construction in any sense, but to establish an independent fact whether the one portion was in substitution of another. If the provisions were made by separate instruments, parol evidence was not admissible upon any question of the construction of either, or to show that the instruments were made for any other or different purpose from that expressed in the writing. If admissible to prove an ademption, it is to be received also on the other side. The testimony is not admitted on either side for the purpose of proving in the first instance with what intent either writing was made, but only to ascertain whether the presumption which the law has raised be well or ill founded.

Mr. Eoper, in his valuable treatise on Legacies, 1 Rop., 346, 409, thus sums up the result of the cases: “ The law may be considered as settled, that declarations made by the testator, to any person, at any time, whether as part of the transaction or not, are admissible in evidence on the question of ademption.”

In Hull v. Hill, 1 D. & Walk., 94-111-133, Sir Edward Sugden, chancellor, made a most elaborate review of this subject. The cases examined by him were .attempted to be classified by Mr. Bedfield thus: “ 1st. When the legacy is claimed to have been adeemed by the father, or one standing loco parentis, parol evidence maybe received in aid of the construction to the same extent as in other cases. 2d. Where the presumption of law is according to the natural import of the words of the will, to receive parol evidence were to contradict the will. But where the presumption is contrary to the primary and more obvious language of the instrument, such evidence may be let in. 3d. Where the legacy is last in order of time, and the presumption is that it. shall be construed or held as satisfaction of an existing debt, or a stipulated portion, it seems more difficult to admit parol evidence. Hence, in most cases of this character, the parol testimony has been rejected.” The case before us falls within this last classification.

The doctrine of ademption, as set out in the English authorities, have been fully sanctioned by the American courts. Paine v. Parsons, 14 Pick., 320; Clark v. Jetton, 5 Sneed, 229; Rogers v. French, 19 Ga., 320. In Rogers v. French, parol evidence was admitted on the point of the intention to adeem.

The investigation we have made into the subject, both of the ademption and parol evidence, to establish or remove the presumption of that intent, have impressed us with the painful vacillation and uncertainty which have marked the coui'se of the decisions. With many jurists, it has been regretted that the doctrine of satisfaction, performance or ademption has been pushed so far, and the tone of the modern cases is to accept it as a rule of equity, because it has been sanctioned by a weight of authority which no court would feel at liberty to disregard.

We do not feel called upon in this case to express any opinion on the extent to which the rule may go, for the admission of evidence extrinsic the will, on the point of the intention to adeem. It seems to be agreed in all the cases, that if the will itself is explicit, either the one way or the other, there is no room for the admission of the extrinsic evidence.

At last, like most others arising on last wills and testaments, the purpose is to arrive at what the testator really meant and intended. If the will itself fairly expresses the testamentary mind, there is no reason to go outside the instrument to get foreign aid.

On questions of interpretations it is always competent by parol to prove the situation of the testator, the condition, character, etc., of his property, etc., so that the court as nearly as may be, may realize the surroundings of the testator, his relations to the subject with which he is dealing, and thereby be the better qualified to reach his meaning and purposes through the language employed in his will to express them. The testimony shows this state of affairs at the date of the will. Gilliam had unshaken faith in the success of the Confederate cause, and confidence in the ultimate value of its currency. In-his business he had accumulated about $25,000 of this currency, which was then on hand. He doubtless believed that profit would be made out of the crop of 1864,-the first year of his marriage, and therefore from this source the $5,000 which in all events he was to pay his wife for her jointure, would come. The profits which he anticipated at his marriage would flow from a long series of years of successful planting, and which were to be divided between himself and wife for the benefit of their respective children, was about being brought to an end by impending death. He knew in the then condition of the country (the war flagrant') that agriculture made no substantial monied returns. Thus regarding his relations to his property and family, he says in his will, to his executors : “ To see that his contracts are fulfilled, and that his wife, Mary Ann Gilliam, have a dowry of five thousand dollars in currency.” We understand the testator as directing this payment in lieu of the sum to be paid her, for her portion or dowry, under the marriage articles. What was secured to the wife by these articles was in the stead of dowry and share of personalty ; what a widow could take by law in spite of any will the husband might make. In the testator’s mind the term dowry comprehended this. What the testator meant, then, was that his executors should pay his widow what he had contracted to give her, at his decease, for her dowry in. his estate. This provision was meant to be in performance, or satisfaction of the marriage contract.

It would follow, then, that Mrs. Gilliam is not entitled to the benefit of both the marriage settlement and the legacy; and that the latter would be pro tanto, a satisfaction of the former. We say pro tanto, because we are satisfied that this legacy was contemplated by the testator to have been paid in Confederate money. If there be ambiguity as to the sort ■of currency meant, it is a latent ambiguity, explainable by parol testimony. The proof is clear, that the testator had on hand a large amount of this currency, ,and not over forty •or fifty dollars of any other kind; and that he believed the Confederate currency would ultimately turn cut to be valuable, reducing this to the value of the circulating medium of the United States, and it would be worth only three or four 'hundred dollars.

We do not, however, put the same construction on the marriage settlement. The parties naturally looked forward to many years of happiness and prosperity. They did not rush into the connubial relation, urged by the impulses of passion and affection alone, but calmly considered the act in •relation to others, who stood dependent, as children, upon each of them, as head of a separate family. Their conflicting interests were to be looked to and harmonized. Gilliam was rich, the father of several children; Mrs. Dennis was a widow, with children, and if not poor, in moderate circum■stances. The little property which she controlled was to be added to his larger estate. Prudent, economical, and judicious management was to preside over the whole, and the profits equally divided. If, however, Gilliam should decease before five thousand dollars had been made for the wife’s part of the profits, then she should be paid that sum out of his estate. These stipulations and provisions for her to be in lieu of dowry or distributive share in his estate. For these benefits, the wife surrendered her marital rights to a property of the husband, of three thousand acres of land, and a personalty estimated at $25,000 or $30,000. The most valuable feature .of the contract, to her (and such both parties esteemed it to be), was the division of the profits and income, •equally. This is a continuing contract, which may and was expected to be in the course of fulfillment for a term of years. There was no time when either party, as survivor, looked to settle with the estate of the decedent under the con tract. The marriage might continue ten, fifteen, or twenty years, unbroken. The sort of currency in which the five thousand dollars was to be paid, could not have been taken into account, because neither party could fix upon a day, near at hand, or in the distant future, when an adjustment and settlement could, by its terms, be made.

This view of the contract is fortified by that provision which reads, “ if the five thousand dollars shall not be realized from net income and increase of property, the deficit, either in money or property, shall be made up from his estate.

When a first examination of this record was made, it seemed to us that the effect or consequence of not stamping the marriage contract necessarily arose. We therefore invited counsel to furnish us with full briefs and arguments on the point. The conclusion to which we have come, after a careful consideration, is, that Mrs. Gilliam had the advantage of this writing, as an instrument of evidence, in the chancery court. Its admission, in evidence, was for her benefit, and at her instance. And that the executors, not having prosecuted a cross-appeal, they cannot complain in this court of the decision of the chancellor in admitting it in evidence. It would, therefore, be a profitless discussion to go into the examination of thé cases, and the reasoning of the courts on the subject. And any conclusion we might come to, would not be obligatory on ourselves or the inferior courts.

Let the decree of the chancellor be confirmed ,* the plaintiff in error to be taxed with costs in this court, but to re-' cover costs in the chancery court.