Robertson v. Robertson

47 So. 675, 94 Miss. 645

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinion

Eletcuer, L,

delivered the opinion of the court.

The testimony of Mrs. Elizabeth Robertson having been properly suppressed, no satisfactory evidence remains upon which we can say safely that the property in controversy was the-sole property of appellant Mrs. Robertson. Nor can we hold that the agreement made between the parties should be avoided on account of mistake, undue influence, or fraud.' We think the chancellor was correct in holding that the agreement was fairly entered into and represented the wishes of the parties at the time. It only remains, therefore, to determine whether, giving the agreement its full legal effect, the bill can be maintained. This agreement will be set out in full by the reporter. The bill seeks to cancel this instrument as a cloud upon the title of complainants, and was manifestly framed upon the theory that the writing conveyed some present vested estate or interest to the appellees, but that on account of the fraud in its execution it should be now set aside and held for naught. It. is now sought to have the instrument declared a will, and therefore revocable at the pleasure of appellant Mrs. Robertson. If the instrument be construed as a compact, or, perhaps more accurately, a covenant to stand seised to the use of the grantees named, which construction seems to tis the correct one, then clearly the suit must fail. On the other hand, if the instrument should be held to be a mutual or even a joint will, it is clear that the surviving testator cannot revoke the will as to the estate belonging to the deceased, which became vested at the death of the testator. In re Cawley's Appeal, 136 Pa. 628, 20 Atl. 561, 10 L. R. A. 93.

In ahy view of the matter, the decree must be affirmed.

Affirmed.