Macrae v. Lowrey ( 1902 )

Calhoon, J.,

delivered the opinion of the court.

The appellees claim title to a one-third interest in the land in controversy from George W. Jamison, while the appellants claim it from William T. Jamison and Alfred LI. Jamison. These three men are brothers, and all sons of William E. Jami-son, deceased. The rights of the parties are dependent on the legal construction of the will of their father, as applied to the facts. The first clause'in this will of William E. Jamison contains the following words:

“I give, devise, and bequeath to my three sons, William T. Jamison, Alfred LL Jamison, and George W. Jamison, and to their heirs, all my lands lying in the county of Tunica, state of Mississippi, known as the ‘Morris Place’ and the ‘Cunningham Place,’ containing in the aggregate about-acres, and one-half of the stock of cattle on said places, all of the hogs on said places, and all the mules on said places, except two of average value with the rest; all the plantation utensils on said places, together with all other property whatever on said places, of which I may be seized and possessed at the time of my death, except a certain mare, the only one on either of said places.”

The will then proceeds to charge this benefaction with the payment of his debts and funeral expenses. The will then gives his wife, Margaret H. Jamison, the mother of these beneficiaries, and the mother of testator’s other children, his home place, in Panola county, for life, remainder to other children, and “the balance of my estate of whatsoever description.” This will was executed April 3, 1872. Now, a large body of land, including that in controversy, had been bought by the testator, together with one Cole, and was owned by the two in undivided moieties, and this whole tract had been purchased by these two from one Cunningham, so that Cole and. the testator owned the Cunningham place. In this condition of the title, the two men agreed on a partition between them. The agreement was in parol, but the division was actuaEy made, and the share of each set aside to him in severalty on February 29, 1872, a little more than one month before the day the will was made; and the share so allotted to the testator, William E. Jamison, did not include any of the lands in controversy. On December 21, 1872, after the will was executed, Cunningham executed to each a deed for his share as per the division they had made in parol. On July 19, 1875, the testator received a quitclaim conveyance of a tax title held by one V. B. Waddell covering that part of the old Cunningham tract, which is the land in dispute. It is plain that at the date of the will the testator was not the owner of that part of -the Cunningham tract in litigation here, but that he was the owner of it, so far as these litigants are concerned, at the date of his death. The testimony as to what was regarded as the -Cunningham place before the will and after the will conflicts, and we cannot properly disturb the chancellor’s conclusion of the whole case on weighing this evidence. We are at last remitted to a decision on the law of the case as applied to the will on the undisputed facts hereinbefore set forth. Formerly one could not devise after-acquired lands. Now he can, and so wills devising lands are very nearly as much ambulatory as wills bequeathing personalty always were under the construction of the courts. This change was made, in England and the states of the Union 'by statutes expressly authorizing the devise of after-acquired lands. Code 1871, § 2388 (Hutch. Code, p. 649, §14). So, since the statutes, where generic terms in the description of lands are used, as here, it is construed to mean the land answering that description at the death of the testator, even where additions are made to it by him after the will. If he sold it, or, 'subsequently to his will, otherwise devised it, the first devisee, of course, lost it. If he added to it, the addition inured to the first devisee. Jarm. Wills (6th ed.), top page 320 et seq. (some of the citations precisely covering the case at bar) ; Hawk. Wills, 18; Schouler Wills, sec. 486; 1 Underh. Wills, sees. 21-62, and note 2; 29 Am. & Eng. Enc. Law (1st ed.), p. 363, note; Wynne v. Wynne, 23 Miss., 251 (57 Am. Dec., 139); Wells v. Wells, 35 Miss., 663. If the devise was of the Morris place, it seems to us additions to it would go; and so of the Cunningham place. We think that the phrase, “all my lands lying in the county of Tunica, state of Mississippi, known as the ‘Morris Place’ and the ‘Cunningham Place,’ ” under the authorities, meant those places so known at the death of the testator, regardless of area.

Lot No.- 7 is out of the case, as the bill was dismissed as to that. The Cole bond for title, even if it could cut any figure in the case, is out of it by the action of the court on appellants’ objection. The settlement between the Jamison brothers referred to other lands. The claim by adverse possession and the claim by estoppel rested on the evidence, and the chancellor’s conclusion must stand.

Affirmed.