Wells v. Wells

35 Miss. 638

• Court: Mississippi Supreme Court
• Decided: October 15, 1858
• Status: Published

Opinion

PIarkis, J.,

delivered the opinion of the court.

The appellee filed her bill in the Superior Court of Chancery, enjoining the appellants from prosecuting their actions at law, to • recover a large estate, real and personal, in the possession of appel-lee, in this State.

The bill charges, that the appellee, about the 1st January, 1835, being in possession in her own right, of a large property, real and personal, intermarried with one Bannister Wells, now deceased, who then owned but little if any property. That, on the 22d January, 1849, the said Bannister Wells, to secure to appellee a comfortable support, conveyed to her by deed of that date, all of his real estate, and the largest portion of his personal property, described in the deed (Exhibit A.), and duly acknowledged and recorded. That she has remained in the possession and use of the property to this time, and has paid all the debts of said Wells, according to the requisitions of the deed. That, about the 6th February, 1849, the said Bannister Wells, then being in the State of Louisiana, and in possession, there, of all the balance of his property, departed this life, leaving a will, by which he bequeathed to appellee all of said property last named, consisting principally of slaves (Exhibit B.). That said will was duly probated in the State of Louisiana, and by virtue thereof, the said property therein mentioned, was delivered to appellee, and by her removed to her house in Madison county, Mississippi. A schedule of which property, marked Exhibit C., is filed; and an authenticated copy of the will, with a transcript of the record of the probate thereof, offered to be procured and filed, if required.

Appellee charges that, in virtue of the premises, she became exclusively entitled, in justice and equity, to all the estate aforesaid, and has remained in the possession and enjoyment thereof.

■That appellants, notwithstanding these facts, have obtained letters of administration on the estate of said Bannister Wells, in the Probate Court of Madison county, Mississippi, and in that character instituted actions at law for the recovery of said personal property, in said county of Madison; and as heirs-at-law of said Bannister Wells, have instituted suit for the real estate in said county, and threaten suit for the lands in Scott and Leake counties.

Prayer for perpetual injunction, and for general relief.

To this bill the appellants demurred. 1st. Because the will was revoked by the deed, and the deed is void. 2d. If the will were valid, appellee could assert no claim under it, until probated in this State.

The demurrer was overruled in the court below, and the case brought here by appeal from that decision.

Confining ourselves, under the well-established practice of this court, to the points raised upon demurrer in the court below, three questions are presented for the consideration of this court.

1st. Was the will of Bannister Wells revoked by the subsequent deed ?

2d. Is that deed void ?

3d. Admitting the validity of the will, could the appellee assert claim under it, in Mississippi, to property in Louisiana, at the death of decedent, and decreed to her by the judgment of the courts of Louisiana, until the will had been probated in this State ?

1st. Was the will revoked by the deed before us ?

Admitting the doctrine of implied revocation as still existing in our State, notwithstanding our statute, yet to give to a deed or othef conveyance such operation, it has long been settled, that there must be a subsequent conveyance of the whole estate.

The doctrine of implied revocation, proceeds mainly upon the principle of presumed intention, and such presumption may be rebutted by circumstances. Douglas, p. 31; 4 John. C. R. -506 ; 3 Call, 334.

If the inconsistency, between the will and the deed subsequently made, be merely partial, the revocation will not extend beyond such inconsistency; because the law will presume the testator intended only a revocation pro tanto, and not in toto. Oowp. 90; 2 Yern. 720; Tol. 19; 2 Yes. Jr. 428; 3 John. 0. R. 148; 14 John R. 324; 7 Tenn. R. 416--17.

Indeed, as no change of intention can be inferred in this case, either as to the object of his bounty, or the subject of the gift, from the subsequent conveyance of a part of the same property to the same donee or grantee by the testator, the conclusion would seem to be inevitable that the deed must be regarded as affecting the disposition of the will only pro tanto.

2d. Is the deed void ? It is said it is void (being made by a husband to his wife), unless it be shown that it conveys to her “ only a reasonable provision” out of her husband’s estate.

The ground of demurrer relied on is the invalidity of the deed; , not the sufficiency of the allegations in the bill, as to whether the “ provision was reasonable” or not. The demurrer assumes that the bill shows upon its face, without reference to extrinsic facts, that the 'deed is void.

That it is not void in equity, simply because it is betwmen husband and wife, has been repeatedly adjudicated in this court. Ratcliffe v. Dougherty, 24 Miss. R. 182; Warren v. Brown et al. 25 Ib. 73; Wells v. Treadwell, 28 Ib. 724. And, so far as concerns the “reasonableness of the provision,” as exhibited by the facts stated in the bill, we are not prepared to say that they are such as to render this deed void.

The argument of counsel on this point is, “ that the bill not only fails to show the provision to be ‘ reasonable,’ but it shows it to be unreasonable, palpably soand, for that reason, the deed is void, and the demurrer on this ground should have been sustained.

The bill shows that, at the time of her marriage, in 1835, with the testator, appellee had a large property, real and personal; that testator owned but little, if any property; that, on the 22d January, 1849, testator, to “secure to appellee a comfortable support,” executed this deed, vdiich, on its face, purported to be of only a part of his estate.

If we are to look outside of the bill and exhibits before the court, on this demurrer to the Louisiana proceedings, which were offered to be filed, if required, it still further appears that appellee, in addition to the payment of the one thousand dollars recited in the deed, bound herself to pay all the debts of testator; and that, the testator received and took with him, at the time of this provision, to Louisiana, seventeen slaves, besides mules, wagon, money, &c.; leaving complainant and appellee twenty-six negroes, land, stock, household furniture, &c.

It may be, for aught we can know upon this demurrer, that there are other circumstances, connected with those already named, rendering tbe arrangement made not only not “ unreasonable,” so far as relates to the interest of the appellee, but exceedingly liberal to the husband. A court of chancery should look at the provision in the light of all the circumstances which surround the parties ; and in the absence of creditors, or subsequent purchasers, and in the absence of any contest between the husband or his children and the wife, a provision, mutually satisfactory to the husband and wife, should be very reluctantly disturbed. Sound policy and sound morality equally forbid that courts of justice should set the example of depriving the wife (often the meritorious source of the husband’s fortune) of the acquisitions of her lifetime labor, and care, to reward the hungry idlers who so often clamor in these halls after property for which they have not toiled.

We think the bill shows sufficient, upon its face, to sustain the validity of the deed in a court of equity.

3d. The last point of inquiry for our consideration is, whether, admitting the validity of the will, the complainant and appellee can claim title to the property therein bequeathed to her, by virtue of the probate of the will, and proceedings had thereon, in the State of Louisiana.

It is assumed, in argument, that, as the will was made in the State of Mississippi, and the testator’s domicil was also in this State, notwithstanding the property claimed by the appellee under the will was in Louisiana, at the death of the testator, still the courts of Louisiana had no jurisdiction over it; and the appellee could only assert her title to the bequest by virtue of probate in the courts of Mississippi; and, for this position, we are referred to the cases of Sturdivant v. Neill et al. 27 Miss. R. 157; and Morris v. Morris, Ib. 847.

In the case of Sturdivant v. Neill, both at the date of the will and at the' death of the testator, he was a resident citizen of the State of Mississippi, and his property was also here. The testator,while on a journey, died in the State of Tennessee, where he made his will. The will was probated in the State of Tennessee, “ according to the laws of Tennessee.”

“The question on this state of the case (says the court) is, whether that court had jurisdiction over the subject-matter.” The court very properly decides that, for want of jurisdiction, the judgment of tbe Tennessee court was void as to tbe property'in dispute, and afforded no evidence of probate of tbe will in the courts of Mississippi, where this property was situate.

The court does not determine, if tbe property had leen in Tennessee, instead of Mississippi, that the probate in Tennessee would have been void “for want of jurisdiction over tbe subject-matter.”

The case of Morris’s Ex’r v. Morris, was peculiarly similar in its main features. The testator was a resident citizen of Mississippi. On a visit to his relatives in New York was taken sick there, made his will and died there. The will was probated there, “ according to the laws of New Yorkhis property situate here in Mississippi. The rule in Sturdivant v. Neill was applied; and, we think, properly.

This case is, however, important in the decision of the case under consideration. In commenting on the case of Montgomery et ux. v. Millikin et ux. 5 S. & M. 151, after showing that, by the local law of Louisiana, a will, executed according to the local laws of the place where it was made, was valid in Louisiana; and that the property administered on in that ease was in Louisiana; and that the will relied on had been probated in Kentucky, and certified to Louisiana, where it was admitted to record, and ordered to be executed, the court proceeds to say: “ The only question which was necessary to be decided by the court (in the case of Montgomery and wife v. Millikin and wife) was, whether the will was valid, and had been so established by the proper court in Louisiana. The judgment of the court in that State would be conclusive on that subject, and was all that our courts could require in regard to the personal estate.”

■ To enable a party, claiming title to property under a will, to avail himself of such will, as evidence of the bequest, it-must appear to have been regularly probated in the jurisdiction where the property is situated, is further illustrated by the decision of this court in the case of Fotheree and wife v. Lawrence, 30 Miss. R. 416.

But, in no case has it been decided here or elsewhere, in our knowledge, that property, legally situate within one State, and already disposed of and administered in its courts by its laws, can be affected by administration, or the want of it, in another State.

Each State has the right to govern and regulate all the property within its limits, without regard to the residence of the owner. It has the right to prohibit and exclude the operation of the lex domi-cilii, if it choose to do so; but, when no such prohibitory laws exist, either express in their terms, or of most manifest intent, the law of the domicil governs both as to transfers inter vivos, and testamentary dispositions. Garland, Ex’or, v. Rowan, 2 S. & M. 634, citing authorities.

This rule, of almost universal recognition, — that the law of the domicil must furnish other jurisdictions, in other States or countries, the law by which to regulate the succession or distribution of personalty, as well as the validity of testaments in relation thereto, — is a rule of comity, to be enforced, or not, according to the will of each sovereign ; because, all property within its limits, must be bound by the laws of such sovereignty. Mahorner v. Hooe et al. 9 S. & M. 274.

In the absence of any positive law'of its own, varying this rule of comity, each State, in administering and disposing of personal property within its jurisdiction, executes and administers the law of the testator’s domicil, through its own tribunals. Its judgments and proceedings, when regular, according to its laws, between parties properly before it, over property within its jurisdiction, must be conclusive everywhere, as already seen from the citation of Morris v. Morris, 27 Miss. R. 851.

Judgments of the courts of this State, and of sister States, stand upon the same footing, and are of equal validity in this respect. They are conclusive inter partes, and operate as an estoppel by the record, from denying their obligatory force, where the jurisdiction of the court affirmatively appears. Miller et al. v. Ewing et al. 8 S. & M. 421.

In this case, the record shows that the parties were personally in court, and litigated, in Louisiana, the matters now sought to be brought before our courts, in relation to the validity of this will, and the rights of the respective parties under it. That litigation was terminated by the judgment of the courts of Louisiana, and, as we think, rightly, in the end. The property urns situate there, and, having jurisdiction of both the property and the persons of their parties, they cannot be heard to relitigate in our courts the matters that have been thus rightfully adjudicated.

Let the order of the court below, overruling the demurrer to complainant’s bill, be affirmed, and cause remanded for further proceedings.

Handy, J., having once been of counsel in this case, took no part in the decision of it.