The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-02-19
DECISIONS OF THE HIGH COURT
October Term, 1855.
REPORTED expressly for The Easter" Car'on,I

pellantS from prosecuting IueH dCIlOHN AT
law to recover a large estate, real and per-
sonal. in the possession Of appellee III this
State. The bill charges, that the appellee,
about the first of January. 1885. being in
possession, in her own right. of large
property, real and personal, intermarried
with one Barrister Wells, now deceased.
who then owned but little. if any. proper
| ty. That on the odd January, 1919, the
said Barrister Wells, to secure to appel
| lee a comfortable support, conveyed to
her 10y deed, of that date, all Of her
| real estate and the largest portion Of her
personal property. described in the deed.
! Exhibit 4 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 reqiSitiOnS of
the deed. That about the 9TH February.
| 1919, the said Barristcr Wells. then being
in the State Of Louisiana and in posses
| sion there of all the balance of her pro-
| perry, departed this life, leaving a acW bv
| which he bequeathcd to appellee. all Of
said property last named, consisting prin-
cipally of slaves, Exhibit b. That said
will was duly probatcd IN the State of Lou
isiana, and by virtue thereof the said
/
| ed TO appellee. and bv her removed to
her home in Madison County. Mississippi.
| schedule of which property. marked
| Exhibit G., is filed, and an authenticated
| copy of the will. with a transcript of the
record Of probate thereof, offered to be
| procured and filed if required. Appellee
charges, that in virtue of the premises.
| she became exclusively entitled. in Jus
tice and equity, to all the estate aforesaid.
and has remained in the possession and
enjoyment thereof That appellants, not
| withstanding these facts, have obtained
letters of administration on the estate of
said Barrister Wells, in the Probate Court
Of Madison county, Mississippi, and in
| that character, instituted action at law. for
the recovery of said personal property, in
| said county of Madison, and as heirs at
law Of said Barrister Wells. have nstitu-
ted suit for the real estate in said County
and'threaten suit for the lands in Scott
and Leake counties. Prayer for peIpetu-
al injunction and for general relief
To this bill appellants demuTed.
| |. Because the will was revoked by the
deed and the deed is void
,. If the viii were valid appellee could
assert no claim under it. until probated
in this State. The demurrer was over
ruled in the court below and the case
brought here 10y appeal from that decision.
Contnlng ourselves under the well es-
tablished practice of this court TO the
points raised upon demurrer in the court
below, three questions are presented for
the consideration of this court l. Was
the will Of Barrister Wells revoked 10y the
subsequent deed? , is that deed void
). 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 dccrced to
her by the iudgmentof the courts Of Lou
isiana until the will had been probated
| in this State
|. Was the viii revolcdby the deed be
fore us?
Admitting the doctrine Of implied re-
vocation as still existing in our State, not
| WlthStandng our statute, vet to give to q
deed or other conveyance such operation.
it has long been settled that there must
| be a subsequent conveyance of the trh0lc
estate. The doctrine Of implied revoca-
ton proceeds, mainly, upon the principle
| of presumed intention. and such pre-
sumption may be rcbuttel by circum-
stances. Douglas. y. 81. 4th John C. K.
500. , Cald. 33A If the inconsistency be-
tween the will and the deed. Subsequent
ly made, be merely partial, the revoca-
ton will not extend beyond such incon-
sistency, because the law viii presume the
testator INTENDED only revocation pro ta,.to
and not ~ toto. ICowp D. 90. Vern. 72O
Tol. 70. 8. John. c. r. l4S. II John. r.
324. 9TH Tenn. r. 4l6.
Indeed, no change of intention can be
inferred, either as to the object of hi,
bounty, or the subject of the gift from the
subsequent conveyance Of a part of the
same property to the same donee. or gran
tee by the testator, the conclusion would
seem to be inevitable. that the deed mus
be regarded as affecting the disposition,
of the will only pro taato
>. l. the deed void? Ii is said IL ],
void, being made by husband to hi
wife, unless it be shown that it convey,
to her "only a reasonable provision, on
of her husbands estate TSe ground 3
deauTrer Tclied on is, the 1,raLEty Of III
idssa, not the sutliciency Of the allegation
in the bill as to whether the provision wa
reasonable or not. The demurrer as
sumes that the bill shows upon its face
! | without reference to eXtrinsic facts, tina
the deed Is void
r That it Is not void in equity simply be
cause it j between husband and wife, ha
. been repeatedly adjudicated in this court
Radcliffe ". Dougherty, 24th Miss. Il. 1
: | lS2, Warren vs. Bowen. 4 al. 18th Mis-,
%. Willis vs.. Treadwell, 2Sth Miss. !
724. And so far as concerns the reason
= ableness OF the provision as eXhibite,
| by the facts stated in the bill. we are no
! prepared to say, that they are such as 4
render this deed void
I Of -sl.
is: That the bill not only fails to shoy
a the provision to he reasonable" hut
, shows ii to be unreasonable, palpably so
and for that reason. the deed is void
and the demurrer on this ground, shoul
+ l'haye been sustained. The bill shows tina
2 at the time of her marriage in 1895. wit
9 the testator, appellee had a large proper
= ty, real and personal-that testator owne
but little, if any. property-that on tn
22d January. 1919. testator, to secure I
I appellee a comfortable support excel
! ted this.deed, which on its face, purport
! to be Of only n part of his estate.
! we are to look outside of the bill and G,
/ hibit before the court on this demurrer {
! the Louisiana proceedings, which were Q
ffrc3 to be filed if required, it still tiTthe
! appears that appellee, in addition to tn
u payment of one thousand dollars. recite
. il the deed, bound herself to pay all til
l, debts of testator-and that the testatC
u received and took with him, at the tin
h of this provision, to Louisiana, seventee
z slaves besides mules. wagons. money, &c
> leaving complainant and appellee twent
six negroes, land, stock, household fu
niture, dc.
1t may be- for aught we can know upc
" this demurrer. that there are circur
III stances connected with those alreaC
e named, rendering the arrangement ma,
l' not only not unreasonable SO far as !
lates to the interest of the appellee, hr
exceedingly liberal TO the husband.
Court of Cnancory should look at the pr
III vision in the light Of all the circur
Y stances which surround the parties al
III in the absence of creditors or SubSeuue
= purchasers, and in the absence of ~
= contest between the husband or his ch
dren and the wife 4 provision nut
We ally satisfactory to the husband and vii
e, should be very reluctantly disturbed.
d. Sound policy and sound morality. equal
)d forbid that courts of Justice should set 4
example of depriving the wife Ioften Il
moritoriOus source of the husbands f,
lie tune) Of the acquisitions of her lifetir
ds labor and care. to reward the hung
- | lQlerS, VINO 50 OIten cl3lnOH IN their Ia
N, after property for which they have n
7n toiled. We think the bill shows sui
1h cient upon its face to sustain the VALID
ld of the deed in a court Of equity.
elk 3. The last point of inquiry for our co
Is sideration Is, whether admitting t
rs. validity of the WILL the complainants al
at appellees can claim title to the proper
er therein bequeathed to her 10y virtue
Sc the probate of the viii. and proccedin
nd had thereon in the State of Louisiana.
eS. 1t is assumed in argument, that a. t
IN will was made in the State of AIissisSip
lp- and the testator's domicil was also in Il
OF State, notwithstanding the property clai
be- ed by the appellee under the Will, was
el- Louisiana at the death of the testat
ID still the court of Louisiana had no iu
Ter diction over it-and the appellee cou
Isl only assert her title to the bequest by '
tue of probate in the courts of Mississ
les pi And for this position we are REFER
us to the cases of Sturdcvant VS.. Neill, Il
a., 9th Miss. H. p. lj7, and Morris vs.. NJ
he ris, ID. p. Sf7.
In the case of Sturdevant vs.. Ne
nd both at the date of the will and at I
TX death of the testator, he was resid,
mt citizen of the State of Mississippi. and
he praprrtJ was also here The testator VIII
on on a Journey, died in the State of Tenn
ed see, where he made his viii. The v
of 80. ,J II, tho State of fT,Op,g.