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DAISY HEGWOOD FORD AND MARIE HEGWOOD HOWELL, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF JAMES OTHA HEGWOOD, DECEASED v. MRS. NANNIE MAE HEGWOOD

MARCH 05, 1986

DAISY HEGWOOD FORD AND MARIE HEGWOOD HOWELL, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF JAMES OTHA HEGWOOD, DECEASED
v.
MRS. NANNIE MAE HEGWOOD, CARROLL DENNIS HEGWOOD AND WIFE, EVELYN M. HEGWOOD, L. R. DOWNING AND WIFE, MYRTLE H. DOWNING, AND BONNIE HEGWOOD



BEFORE WALKER, P.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

At the heart of this case is the question whether a June 20, 1951, instrument labeled "Warranty Deed" is void in law as an attempted testamentary disposition for its failure to comply with our statute of wills. The operative language is as follows:

In consideration of . . . we, the undersigned J. O. HEGWOOD and wife, NANNIE MAY HEGWOOD, do hereby sell, convey and warrant to our son, CARROLL DENNIS HEGWOOD, and HIS OWN BLOOD HEIRS, at OUR DEATH, the following described land in Lamar County, Mississippi, to-wit: [Description of Property]

 Our law is well settled in two complementary lines of cases. Where an instrument, though in the form of a deed, contains its maker's provision that it makes no present conveyance of an interest in land or otherwise directs that

 the interest to be conveyed vests in the grantee only upon the death of the grantor, such an instrument is regarded as testamentary in character and is enforceable only if made in compliance with our statute of wills. Tapley v. McManus, 175 Miss. 849, 854-55, 168 So. 51, 52 (1936); see also, Peebles v. Rogers, 211 Miss. 8, 50 So.2d 632 (1951); Palmer v. Riggs, 197 Miss. 256, 19 So.2d 807 (1944); Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892 (1942); Ates v. Ates, 189 Miss. 226, 196 So. 243 (1940); Smith v. Buffington, 176 Miss. 889, 170 So. 243 (1936); White v. Inman, 212 Miss. 237, 54 So.2d 357 (1951); and other cases to like effect. See Miss. Code Ann. 91-5-1 (1972) (requiring, inter alia, signatures of two witnesses before instrument valid and enforceable as a will).

 Conversely, where the instrument conveys a future interest in land which vests in the grantee effective upon delivery of the deed, though reserving in the grantor a life estate, the effect of which is to postpone only the grantee's right of possession or occupancy, the instrument is a deed in law subject to our law appertaining thereto and may be effective notwithstanding failure to comply with the statute of wills. Buchanan v. Buchanan, 236 Miss. 751, 756-57, 112 So.2d 224, 226-27 (1959); Tanner v. Foreman, 212 Miss. 355, 54 So.2d 843 (1951);see also, Watts v. Watts, 198 Miss. 246, 22 So.2d 625 (Miss.1945); Graham v. Triplett, 148 Miss. 299, 114 So. 621 (1927); Johnson v. Seely, 136 Miss. 60, 103 So.499 (1925); Stubblefield v. Haywood, 123 Miss. 480, 86 So. 295 (1920); Wall v. Wall, 30 Miss. 91, 96-100, 64 Am.Dec. 147 (1855). See also Miss. Code Ann. 89-1-1 (1972) (authorizing conveyance of future interest).

 The rules of law emanating from these cases being clear, no useful purpose would be served by a detailed consideration of same. Suffice it to say that we have reviewed the language of the instrument under construction in each such case. Without exception, we find the language of the instruments involved in the Tapley v. McManus line of cases establishing the testamentary character of the instrument more definitely than may be said of the instrument at bar. Conversely, the instruments involved in the Buchanan line of cases each establishes the present conveyance and vesting of a future interest, subject only to the grantor's life estate, more clearly than is the case with the instrument at bar. Our decision today must of necessity expand the rule of one line an inch or two toward the other.

 We make today's decision against the backdrop of one of the grand purposes of our law: to enable persons to achieve legitimate ends which without law would be impossible of achievement. Our law facilitates the realization of dreams,

 modest or grand, private or charitable. In this regard law vests certain powers in each of us. We are given to believe that, without further authorization, we may with effect exercise those powers, so long as we conform to certain general enabling rules. *fn1

 When doubtful cases arise it is incumbent upon us that we build our adjudication upon the cornerstone of this grand purpose of our law. Where as here individuals seek to accomplish ends authorized by our law, we are obliged to take upon ourselves a positive attitude that the law may serve, not thwart, the legitimate aspirations of those individuals. Put otherwise, the rules of strict construction sometimes applied when enforcement of penal rules is at issue give way in the present context to an appropriate degree of liberality.

 One end our ancestors thought a necessary incident of freedom, and for which they long fought, was the right to own property and necessarily the right to dispose of one's property as one sees fit. Our law today empowers persons to accomplish these ends - to be sure, with notable restrictions, none of which affect today's adjudication.

 This day our specific attention is focused upon J.O. and Nannie Mae Hegwood. In June of 1951 the Hegwoods were among those whom our law empowered to dispose as they saw fit of real property owned by them. On the twentieth day of that month, they executed and delivered the instrument here in controversy. Our concern is not with whether, according to abstract notions of justice, plaintiffs or defendants should get the land but that we give proper effect to the private directive arrangement J.O. and Nannie Mae Hegwood indisputably had power to make. We necessarily begin that effort by searching out the Hegwoods' intent.

 There is much to be said for the proposition that in the construction of written instruments courts should be concerned with what parties said rather than with what they intended - for what they said is capable of ascertainment with far less opportunity for mischief. This premise does not negate our seeking the Hegwoods' intent on the premise that the words they have employed are the most reliable guide to that intent.

 Here the words used leave no reasonable doubt but that J. O. Hegwood and Nannie Mae Hegwood intended to convey the land as of June 20, 1951, so that there would be no question of its ownership at their death. Lawyers may find interesting the subtle distinction between a conveyance in the present of a future interest with a life ...


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