Watson v. . Owen , 142 Miss. 676 ( 1926 )

^* Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., p. 900, n. 97. Descent and Distribution, 18 C.J., p. 888, n. 85. Reformation of Instruments, 34 Cyc., p. 980, n. 4; p. 984, n. 33; p. 987, n. 36; p. 990, n. 54. Burden of proof in action to reform written instrument; 23 R.C.L. 365. The suit is in chancery to reform a certain written instrument, and for the specific performance of same after reformation, and for general and special relief. From a decree denying the relief sought and dismissing the bill, this appeal comes here.

The instrument sought to be reformed and enforced is in the following language:

"May 1, 1889.

"We, J.W. Manning, Wheeler Watson, H.D. Watson Mrs. Tennie T. Owen agree to divide equally among ourselves any money that may come to the estate of our father, Asa Watson, and share equally any expense that is incurred in the collection of said money.

"J.W. MANNING. "WHEELER WATSON. "H.D. WATSON. "TENNIE T. OWEN."

The appellee herein, Mrs. Tennessee Watson Owen, signed the instrument as Tennie T. Owen, and is the same person. The other three parties to the instrument are the deceased brothers and sisters of the appellee, and all are the children of Asa Watson, who died intestate in 1886. The appellee had a sister, Marcy L. Watson, living in New York, who was very wealthy. One of the daughters of the said Marcy L. Watson, namely Emily A. Watson, died in New York in 1924, and left an estate from which the appellee, Mrs. Tennessee Watson Owen, received one hundred twenty-six thousand, six hundred thirty-three dollars and seventy-five cents in settlement of her claim against the said estate; it being contended that the money was acquired as a kinsman, or as a descendant of the said Asa Watson, deceased, by virtue of relationship to Emily A. Watson, through appellee's father, Asa Watson.

When appellee received the above-named sum of money from the estate of Emily Watson, the appellants, who are the heirs at law of the other three parties who signed the instrument herein sought to be reformed, demanded that the appellee divide the money with them under the agreement evidenced by the instrument here involved; and, upon her refusal to make the division demanded, this suit was brought to reform the instrument and compel the specific performance thereof in the division of the amount received by the appellee from the estate of the said Emily A. Watson.

Oral testimony was offered at length by both sides for and against the reformation of the instrument. The appellants contended and offered testimony to show that the instrument did not express the mutual intent of the parties thereto, but that the real mutual intent of the parties at the time the instrument was executed was that all property or moneys of every kind and from every source that might come to either of the parties in the future should be shared equally between all, and that therefore the amount received by appellee from said Emily A. Watson ought to be divided equally between appellee and the appellants, heirs of the other three deceased parties to the instrument.

The appellee, on the hearing introduced evidence showing there was no mutual mistake, and that the instrument expressed the mutual intent of all of the signers thereto, and that the agreement evidenced by the writing was intended to cover only the proceeds which they at that time expected to recover from the United States Government on certain cotton claims, upon which there was a failure to finally realize; that it was not in the minds of any of the parties to divide any money or property that might come to them through any of their relatives in New York or elsewhere; that no such acquisition of money, which is the subject of this litigation, was thought of by the parties at the time the agreement was made between them. The record discloses that appellee received the money from the estate of the deceased New York relatives more than thirty-five years after the execution of the agreement, and that during this period of time no effort was made to reform this instrument here in controversy.

The bill filed by the appellants was one to reform the instrument, so as to express the mutual intent of the parties thereto, but appellants now contend that, if the court should refuse to reform the instrument under the evidence in the case, then appellants are entitled to a division of the one hundred twenty-six thousand six hundred thirty-three dollars and seventy-five cents received by appellees under the prayer for general relief in the bill, because the money was acquired by appellee as a descendant of Asa Watson, and that, therefore, under the language of the written agreement, the money was acquired by, or through, the estate of Asa Watson as mentioned in the instrument.

On the first proposition as to whether the lower court erred in refusing to reform the instrument involved, we think the finding of the chancellor was abundantly supported by the evidence and we see no reason for disturbing his decision. The testimony is clear and convincing that the parties to the instrument only intended to divide equally among themselves any money that might come to the estate of their father by virtue of the claim against the United States for cotton seized after the Civil War upon which they hoped and expected to realize some money at a future date. The testimony in the case shows that the written agreement between the parties expressed the mutual intent of the parties, and did not intend to cover any money or property received from New York relatives thirty-five years after the execution of the agreement; that such an acquisition of money was not in the minds of the parties at the time of the agreement in 1889. The appellants failed to meet the burden of the proof required by law. This being true the refusal of the chancellor to reform the written instrument will not be disturbed upon this appeal.

A party who seeks to reform a written instrument has the burden of proving mutual mistake beyond a reasonable doubt. Parol testimony to reform must be received with "great caution and distrust." The burden of proof grows heavier upon the complainant by the lapse of time before seeking reformation. Harrington v.Harrington, 2 How. 701, 718; Lauderdale v. Hallock, 7 Smedes M. 629; Jones v. Jones, 41 So. 373, 88 Miss. 784 ; St. P.F. M. Ins. Co. v. McQuaid, 75 So. 255, 114 Miss. 430; Travelers' Insurance Co. v. Henderson, 69 F. 765, 16 C.C.A. 390; Litteral v. Bevins, 217 S.W. 369, 186 Ky. 514;Little v. Webster, 1 N.Y.S. 315, 48 Hun, 620; Mifflin CountyNat. Bank v. Thompson, 22 A. 714, 144 Pa. 393; Pope v.Hoopes, 90 F. 451, 33 C.C.A. 595; Des Moines County Agr. So. v. Tubessing, 54 N.W. 68, 87 Iowa, 138; Coleman v. Ill. LifeIns. Co. (Ky.), 82 S.W. 616; Heffron v. Fogel, 82 P. 1003,40 Wn. 698; Bobb v. Bobb, 4 S.W. 514, 89 Mo. 411;Fitschen v. Thomas, 22 P. 453, 9 Mont. 52; Stein v.Phillips, 84 P. 793, 47 Or. 545; Webb v. Nease, 49 S.W. 1081, 66 Ark. 155; Wells v. Ogden, 30 Wis. 637; Roberts v.Derby, 23 N.Y.S. 34, 68 Hun, 299; Dawson v. Graham, 41 Upper Canada Q.B. 532, citing Kerr on Frauds, 350; StockbridgeIron Co. v. Hudson Iron Co., 107 Mass. 290, 317; NebraskaLoan T. Co. v. Ignowski, 74 N.W. 852, 54 Neb. 398; Ramsey v. Smith, 32 N.J. Eq. 28; So. F. W. Co. v. Ozment,44 S.E. 681, 132 N.C. 839; Hearne v. Mutual Marine Ins. Co. 20 Wall. 488, 22 L.Ed. 395; Keedy v. Nally, 63 Md. 311; Stiles v. Willis, 8 A. 353, 66 Md. 552; Bobb v. Bobb, 4 S.W. 511, 89 Mo. 411; Davidson v. Mayhew, 68 S.W. 1031, 169 Mo. 258;Fitschen v. Thomas, 22 P. 450, 9 Mont. 52; Yocum v.Foreman, 14 Bush (Ky.) 494; Travelers' Ins. Co. v.Henderson, 69 F. 762, 16 C.C.A. 390; Paulison v. VanIderstine, 29 N.J. Eq. 594; In re Hunter's Estate, 23 A. 973,147 Pa. 549; Ferring v, Fleischman, (Tenn. Ch. App.), 39 S.W. 19; Bobb v. Bobb, 7 Mo. App. 501; Jack v. Naber, 15 Iowa, 450.

On the second contention, that appellants are entitled to a division of the money in question under the instrument as written, we are unable to bring ourselves in accord with this view, because the written agreement provides for the division of "any moneys that may come to the estate of our father, Asa Watson. Asa Watson died in 1886, and therefore was not living at the time of the death of Emily A. Watson, in 1924, it is not even shown that any part of the estate of Emily A. Watson would have gone to Asa Watson if he had lived. Consequently the money here involved did not, and could not, "come to the estate of Asa Watson" as provided in the written instrument. This being the case, we think the claim of the appellants under the instrument as written is untenable, and must be denied.

There are other questions presented in the record, such as laches of appellants in attempting to reform the written instrument thirty-five years after its execution, and that the appellants received a small amount in settlement of their claim against the estate of the deceased, Emily A. Watson, and were thereby estopped, and that there was no consideration for the agreement, but we deem it unnecessary to pass upon these questions, because the lawsuit will be brought to an end by the determination of the two questions presented first above.

The decree of the lower court is affirmed.

Affirmed.