McDonald v. Chapman

91 So. 861, 129 Miss. 149

Opinion

Ethridge, J.,

delivered the opinion of the court.

Allen McDonald in his lifetime owned the east half of the west half of section 8,. township 3, range 8, De Soto county, Miss., and left a will disposing of said property, Avhich said will is in the following words and figures, to wit:

“To Whom It May Concern, to-wit:

“This is to certify that I, Allen McDonald, being in my right mind do make this will for the purposes herein set forth, to wit:

“1st. After my death my farm lands is to be rented and the proceeds equally divided between my heirs, after the death of my wife, Easter McDonald, who is to own and possess all my property during her natural life.

“2d Proviso. Should my son, Sherm,an McDonald, marry during my lifetime, then he is to have three (8) acres on the east side of the plantation for a dwelling site the south line of said three (3) acres not to extend farther south than forty (40) feet into the present orchard, and thirty-seven (37) acres north of the little creek. The northern boundary line not to extend farther northwest than big Hurricane creek. The forty (40) acres herein mentioned to be owned by my son, Sherman McDonald, after my death as his own individual homestead, regardless the 40 acres given my son, Sherman McDonald, he is to have an equal share with the other heirs in the division of the remainder of my estate after the death of my wife, Easter McDonald.

“3d. It is my will after my wife’s death, Easter McDonald, that there be no division of my estate (land) until my grandson, Lucious Chapman, becomes of age, he being the youngest grandchild now living, and after Lu-cious Chapman becomes of age then my heirs may divide the estate as they think best that each grandchild get an equal share with my own children, viz.: Willie McDonald,' Mary Chapman, Rachel Oliver, Silvia McDonald, Sherman McDonald, Martha McGee, and Fannie Butler, and their heirs.

“This will made and signed in the presence of witnesses whose names are attached on this 20th day of February, A. D. 1892.”

—which said will was duly witnessed.

The said Sherman McDonald mentioned in said will married during the lifetime of Allen McDonald, and settled upon the said tract of land and lived upon it during Allen McDonald’s lifetime, and thereafter until his own death, and his widow and children who are defendants to the suit still reside thereon. The complainants filed their bill for' partition or for sale and partition of said lands and parties to the suit are the children and grandchildren of Allen McDonald, the testator. The defendants, Ida McDonald, and the children of Sherman McDonald, the appellants here, set up the claim under the will alleging that said Sheignan McDonald Avas placed in possession of the said property by Allen McDonald, and that the tract of land intended to be devised to Sherman McDonald Avas that part of the above-mentioned subdivision which lay north of Small creek and east of Hurricane creek, except three acres Avhich were situated in the southern part of the said one hundred and sixty acres of land, the boundaries of Avhich house site Avere evidenced by an old fence row placed by Sherman McDonald during his lifetime, and Avhich had existed since about 1894. It Avas contended by the complainants that the description in the will Avas insufficient to identify the thirty-seven acres, and the chancellor held in accordance Avith this contention. The proof showed as to the house site that it had been occupied as a home by Sherman McDonald and his family, and the chancellor found title to one and a half acres inclosed Avithin the boundary of the fence to belong to the family of Sherman McDonald.. The proof further showed that Allen McDonald, deceased, had expressed his intention to give forty acres to his son, and further showed that the son had cultivated part of the land in controversy throughout the period he lived on the place. The defendants procured a ■surveyor to malee a survey of the land lying north of Small creek and east of Hurricane creek, and his map is in the record, and shows that the tract of land lying north of Small creek and east of Hurricane creek in the said subdivision amounted to thirty-five and eighty-five hundredths acres. The appellants contended that the chancellor erred in not decreeing title to the thirty-seven acres or to that part of the land lying north of Small creek and east of Hurricane creek to the appellant, and, second, that the chancellor 41so erred in decreeing that the grandchildren of the testator living at the time of his death were tenants in common with his children.

We are of the opinion that the title to the thirty-five and eightv-five hundredths acres lying north of Small creek and east of Hurricane creek passed to Sherman McDonald at the death of his father, and that the title thereto is now in the appellants. The streams mentioned are sufficiently referred to to make them boundaries for this conveyance, and the eastern boundary of the tract necessarily was a third boundary. In equity that is certain which is capable of being made certain, and a surveyor could easily lay off thirty-seven acres with these several things to constitute the boundaries of the tract. . In fact the entire land owned by the testator within these boundaries constituted a fraction less than the thirty-seven acres called for. But, if there had been more land than thirty-seven acres embraced in the territory north of Small creek and east of Hurricane creek the surveyor could have with these boundaries laid off these thirty-seven acres immediately north of said Small creek. The chancellor therefore was in error in denying the appellants’ title under the will to this land and to that extent the decree will be reversed.

On the second point raised by the appellants a careful consideration of the language employed convinces us that the testator intended for his grandchildren to share with his children. The language used plainly carries this purpose. There was evidence introduced tending to show a contrary intention, and to show that the testator only intended that such as survived their parents should take the part of their deceased parent where such death has occurred prior to the death of the testator, but such evidence plainly contradicts the terms of the will, and the evidence was inadmissible for that purpose.

The decree will be reversed, and the cause remanded to be proceeded with in accordance with this opinion, the chancellor having retained jurisdiction until a commission could make sale of the land for division and a report thereof-

Reversed and remanded.