Opinion
February 28, 1949.
1. Deeds — fiduciary relationship.
A deed by a widowed mother to her two daughters with whom she lived and to whom she had devised the property by her will executed eleven years before, no other pertinent facts than this being shown, is not presumptively void on account of the relationship of the parties.
2. Wills — part of property conveyed to devisee — election.
Where the testator after the date of her will by which she had devised certain real estate to her daughter, conveyed a part of the same property to the same daughter, who later presented the will for probate and qualified as executrix thereunder, the daughter was not precluded from taking under the deed, the doctrine of election, in that if she took under the deed, she would be taking against the will, not being applicable.
3. Wills — part of property conveyed to devisee — pro tanto revocation.
Where a testator by her will devised certain real property together with other property to her two daughters and afterwards conveyed a part of the property to her said daughters, the conveyance did not revoke the will as to all the property devised to her daughters, but only as to that part embraced in the conveyance.
4. Partition — bill of complaint — when sufficient.
If from entire bill it can be seen that there is substance to suit and there is revealed enough to show equitable merits the complaint will be entertained, hence a bill for partition is not to be deemed insufficient because it does not allege that the tenants in common are in possession or have a right of possession.
5. Partition — sale for division — proof necessary.
In the absence of proof or admission that a sale will better promote the interest of the parties or that an equal division in kind cannot be made, a sale for partition cannot be ordered.
6. Partition — sufficiency of bill and prayer — partition in kind.
Although a bill for partition prays specially that the property be sold, and there is no proof which would authorize a sale, yet if there is a prayer for general relief it will be sufficient to support a decree for partition in kind under the rule that under a prayer for general relief the complainant may have any relief within the scope of the facts, not inconsistent with the purpose of the bill, and which will not cause surprise.
Headnotes as approved by Montgomery, J.
APPEAL from the chancery court of Leflore County, R.E. JACKSON, Chancellor.
Alfred Stoner and B.B. Allen, for appellant.
We submit that for a number of reasons the bill should not have been dismissed, especially on motion to exclude complainant's evidence. In the first place, the suit was for partition. Defendants all admitted that the complainant had an interest in at least a small part of the land, the admission being as follows: "and Vincent Dantone's interest being one-sixth passed under Item 7 of the said will to his son Brossie Dantone", etc. This admission was again made in the answer of Mary Dantone Giardina and Joe Dantone, their answer having been adopted by Mrs. Robert Hill and Vincent Dantone, Jr., kindred of the half blood. In fact, not a single one of the defendants denied that the complainant Brossie Dantone was entitled to an interest in some of the land and we do not understand how the bill could properly be dismissed when everybody admitted that the complainant owned an interest in part of the land. The only dispute was as to the extent of the interest and the amount of the property in which interests were held. Nobody denied that complainant held the land as tenant in common with the kindred of the whole blood, and this being so we submit that the complainant was definitely entitled to partition at least to the extent of the interest that all admitted that he held.
It could not be said that the complainant could be compelled to await the closing of the administration of the estate, because the law on this point was settled long ago. Land, of course, descends directly to the heirs or beneficiaries and can be partitioned, regardless of whether or not the estate is in administration. Garrett v. Colvin, 77 Miss. 408, 26 So. 963; Foster v. Newton, 46 Miss. 661.
We submit also that the second amended bill of complaint, as amended, on which the case was tried, when considered with the admissions of the answer and the testimony as introduced by complainant, ought to have been retained by the lower court, and at least some relief granted thereon.
It was alleged in the amendment to the second amended bill of complaint that Rosa Dantone qualified as executrix of the will of her mother on the 26th day of August 1946, and that she had acted as executrix thereof ever since and that on March 21, 1947, filed a preliminary statement of account therein and on April 1, 1947, obtained an ex parte order authorizing preliminary distribution and that by virtue thereof made distributions under said will to herself and other beneficiaries under said will and is estopped to claim against its provisions. Allegations to the same effect were made in the body of the second amended bill.
No denial whatever of said allegations was made by the defendants and hence they stand admitted.
We submit that our court has held several times that an executor who qualifies as such, especially where he claims and accepts under the will is bound to follow its provisions as written. Our court has held as follows: "On the contrary he probated the will, proved it as a subscribing witness, and attempted to execute its provisions as such executor. By probating the will, qualifying as executor thereunder, and attempting to act as such, he elected to take under the will, and by doing so he acquiesced in the devise thereunder of the land by him to these parties. It was his duty as executor to execute the will in all of its provisions, and by qualifying as such he made his election to take under the will, and therefore he must not only take what is devised him under the will, but see that the other devisees get the property devised to them by the testatrix." West v. West, 131 Miss. 880; 95 So. 739.
We submit also that not only has our court held that a party who qualified as executor under a will and attempts to act in accordance therewith is bound to follow the terms of the will to the letter insofar as property in general is concerned, but is bound by the will even to the extent of transferring the title of property which stood in the name of the executor at the time of the death of testator. Barrier v. Kelly, 82 Miss. 233; 33 So. 974.
We submit also that there is nothing in the will or even in the deed to indicate that it was the intention of testatrix that Rosa Dantone have two shares, namely; that which was willed to her, plus that which was willed to her sister Constance. It is evident that Rosa was well provided for, even in the event that her sister Constance had outlived the testatrix by fifty years. It was not the intention of the testatrix that Rosa should should wind up with all that was left to Constance. If the testatrix had so intended she would have changed her will in her lifetime. At least, the law so presumes. Welch v. Welch, 147 Miss. 728, 113 So. 197.
We concede that appellee Rosa Dantone is entitled to everything the will gives to her. But we do not concede that Rosa is entitled to have all that the will gave her and in addition thereto property that the will gives to complainant Brossie Dantone.
Mrs. Catherine Dantone, the testatrix, executed her will on the 14th day of November, 1929. At that time she devised and bequeathed to her daughters, Rose, (or Rosa as she is sometimes called) and Constance a very large share of her estate. Subsequently on the 13th day of March, 1940, she deeded to Rosa and Constance the most valuable portion of the estate; at the time that the said deed was executed the said Rosa and Constance were not only agents of their mother in handling all of her rental property, but they were her confidential advisors, close personal associates of the testatrix and occupied positions of trust and affection. In this situation, the grantees of the deed occupied a relationship that falls within greater suspicion than that which existed between Ham v. Ham, 146 Miss. 161, 110 So. 583.
We submit that the case at bar is even stronger than the Ham case in that the daughters acted as the interpreters of their mother and in that at the advanced age of their mother who was eighty seven years of age at the time of the execution of the deed, had grown dependent upon her daughters, they being her advisors and agents and their mother even depending upon them to act as chauffeurs of the family automobile. The charges of agency, trust and confidence, and close relationship are not denied in the answers.
We submit that when the court sustained the motion to exclude complainant's evidence the admissions of the answers were not taken into consideration.
We submit also that the evidence introduced by the complainant was strongly corroborative of the admissions of the answers, and within itself would shift the burden of proof to defendants, even if the herein cited authorities had not already done so.
We submit that all of the Mississippi authorities hold that the burden of proof relative to the issue of confidential relationship shifted to the defendants.
As above noted from the case of Ham v. Ham the presumption of invalidity can only be overcome, if at all, by clear evidence of good faith of full knowledge and of independent consent and action. In these circumstances the court did not even require the defendant to put on proof.
Definitely under the Ham case and others to be hereafter cited the burden was on the defendant. Risk v. Risher, 197 Miss. 155, 19 So.2d 484; Watkins v. Martin, 167 Miss. 343, 147 So. 652; Lindeman's estate v. Herbert, 188 Miss. 842, 193 So. 790.
We submit therefore in conclusion that Rosa Dantone, the chief defendant and her sister occupied such relationship toward their mother at the time of the execution of the deed as to make the deed, when attacked prima facie void. In other words, the burden of proof rested upon them; that they admitted the agency and close confidential relationship even to the extent of acting as interpreters for their mother. That there is nothing in the record to indicate that testatrix intended that her daughter Rosa have both her own share of the principal part of the estate as well as the share that was deeded to Constance; that the testatrix lived for some years after the death of Constance and if she had intended that Rosa have Constance's share she could have changed her will; that the executrix is definitely estopped to claim both under the will and against it; that she has qualified as executrix, sworn that she would carry out the terms of the will, has made distributions by virtue of ex parte orders of the court to herself and other beneficiaries of the will and hence is estopped to claim against the will. Rosa made her election and under the Barrier and West cases, above cited, should stand or fall on that; not only was the point well settled by the Barrier and West cases but is settled by all authorities; that the bill should not have been dismissed, and on the contrary, if the defendant should refuse further to introduce evidence then the complainant would be entitled to a decree; that the half brother and sisters of complainant are excluded by the will and have no interest whatever in the property owned by testatrix at the time of her death; that he will gave to the complainant, Brossie Dantone all of the property that had been devised to his father Vincent Dantone, Sr. who died prior to the death of testatrix; that the first sentence of Item 7 of the will does not limit the devise in any way but gives to Brossie all of the share of his father; that the demurrer should not have been sustained and that this cause should be reversed.
Pollard Hamner, for appellees.
This is definitely not a partition suit as is stated in the opening sentences of appellant's brief, mainly because the bill must set up facts entitling complainant to partition as provided by Chapter 4, Code of 1942. There is no allegation in the bill from its caption to its prayer that partition is sought or that complainant is entitled to partition nor that the parties are "joint tenants, tenants in common or coparceners", nor that they have "an estate in possession or a right of possession and not in reversion or remainder". No reference is made to partition until in the last portion of the prayer where it is stated as a delayed afterthought "that the said realty be sold for partition and that a commissioner be appointed to that end."
Secondly, no syllable of proof is offered by complainant to substantiate any claim for partition. In fact, the only proof undertaken by complainant was in connection with an assumed confidential relationship alleged to exist between Mrs. Dantone and her two daughters.
We state that under the bill as written, without a syllable of proof, it would have been impossible to include in a decree in this cause any provision whatever for a partition and complainant rested his case in that shape.
It will be noted at the outset that this is not a suit filed by the grantor in a deed to set aside a conveyance to a grantee named therein but a suit by a grandson six years after a deed is executed and the grantees entered into possession and after the grantor has died, to set aside a deed on the alleged ground of confidential relationship between the grantor and the grantees, to the extent that the grantor was overreached by the grantees. The original bill attempted to set up facts which would create that type of confidential relationship which would cause a presumption to arise that the grantor in the deed had been overreached by the grantees and so place the grantees on the defensive. Our answer to this proposition is three fold: (1) The allegations of the bill are insufficient to set up a case of presumptive fraud or over reaching.
(2) The second amended bill of complaint, as finally amended, alleges undue influence and the burden of proving such undue influence was on complainant.
(3) Assuming the original bill set up a case that would permit the presumption that the grantor had been overreached, the complainant's own proof wholly failed to establish either a presumption or any undue influence whatsoever.
(1) Coming now to the allegations to establish confidential relationship, they simply are that the mother and the daughters resided in the family home from 1920 until the death of Constance in 1944, and that Rosa and her mother resided there until the death of the mother in 1946; that the daughters were the agents and companions of their mother and attended to all her business affairs but there is no allegation of any deception or duress or overreaching
We concede that there are certain relationships between individuals which courts of equity for many years have construed to create equitable trusteeships. All of these cases may be grouped under the heading of conventional fiduciary relationships, as guardian and ward, physician and patient, principal and agent, attorney and client and similar cases where the very fact of relationship imputes a trust; or in cases where, by the peculiar circumstances and the proof, a trust relationship was actually established. It is impossible to fit the instant case into the conventional class and, indeed, no attempt is made by appellant to do so in either his original bill, his amended bill, or his second amended bill, and not until he files his amendment to his second amended bill does he intimate remotely such attempt and then he undertakes to allege a principal and agent theory, but at the same time, he then alleges undue influence and when he alleges undo influence, he arranges his battle on that ground and as held by all authorities, must prove such influence; allegations are not sufficient.
The chancellor, after hearing the evidence, noting the witnesses and their manner of testifying, stated most emphatically that "there was no indication in the testimony of any of the witnesses that Mrs. Dantone had any sickness or any weakness of any kind; that the daughters dominated her in any shape, manner or form."
We submit that he could not have held otherwise. Before leaving this phase of the case we wish to refer to the case of Ham v. Ham, 146 Miss. 161; 110 So. 583, upon which appellant bases his case and to note the points of difference in that case and the instant case which shows definitely that the Ham case is not authority in the present case.
(1) The Ham case fell within the conventional category of a partnership. There is no element of partnership in the Dantone case.
(2) The will first made by C.M. Ham devised his property to his brothers and sisters; the subsequent deed conveyed all the property to a brother. In the Dantone case the will conveyed the property to Rosa and Constance and the deed also conveyed the property to them.
(3) C.M. Ham was ill with an incurable disease certain to result in death shortly and was so advised by a doctor. Mrs. Dantone was neither ill mentally nor physically nor afflicted with any disease.
(4) The deed from C.M. Ham to Eugene "was not intended as a gift but was a straight bargain and sale. The consideration recited in Mrs. Dantone's deed to her daughters of "love and affection" and "long and faithful services to me" indicate definitely a deed of gift.
(5) The court stated in the Ham case that C.M. Ham feared he would become invalid and feared trouble over the property from some of his relatives. There is no proof, nor indeed any allegations, that Mrs. Dantone feared that she would become an invalid or that there would be any trouble whatever among her relatives.
We think further discussion of the Ham case is unnecessary for the above reasons and because its holdings have been so thoroughly clarified in the subsequent cases of Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41; and Wall v. Wall, 177 Miss. 743, 171 So. 675.
It will be noted that the will of Mrs. Dantone devises the Howard Street property to Rosa and Constance. The deed of Mrs. Dantone executed in 1940 grants to them the same property. Yet appellant stands on the will and bases his entire case on it but he repudiates the deed. Why? These two daughters were living in the home alone with their mother for nine years after the father's death in 1920 before the will was executed in 1929 and then for eleven years more when the deed was executed in 1940. There was no change in their relationship to each other whether confidential or otherwise. They were alone; the same property was owned by Mrs. Dantone; nothing was added. Will appellant please tell us why the will was not invalidated on account of confidential relationship if the deed was. There is neither allegation nor proof to reconcile this inconsistency. Appellant cannot rely on the will and disavow the deed, on the facts of this case. He is toying with the court when he undertakes to do so and the chancellor was eminently correct in dismissing his bill.
It is said that Rosa took by virtue of the will and also against it and that the doctrine of election applies.
The original bill charges that Rosa Dantone "is not acting as executrix of her mother's will and claims to own all of the property, which was owned by the said Mrs. C. Dantone at the time of her death, including that facing Northwardly on Johnson Street and Westwardly on Main Street, etc." This was denied in Rosa's answer. She answered that she claimed only such parts as she was entitled to receive. There is no word of evidence as to what Rosa claimed nor would appellant undertake to introduce any testimony along this line and his allegation must be considered worthless.
It is unquestionably true that Rosa did qualify as executrix under her mother's will and it is certainly true that the will devised certain property to her. There is no law prohibiting an executor from accepting a devise in his favor. But appellant says in his brief that Rosa cannot take under the will and against it too. We take no issue on this statement of law but the facts of the case must bring it under the principle of the law sought to be applied. We ask, therefore, just where Rosa takes under the will and against it. She does not attack the will in any respect; she is bound by it; she makes no claim contrary to its provisions. Where is the proof that she does?
Appellant seeks to bolster his case by invoking the doctrine of election, but this is not a case of election. We have long been familiar with Barrier v. Kelly, 82 Miss. 233, 33 So. 974, and West v. West, 131 Miss. 880, 95 So. 739; and Welsh v. Welsh, 147 Miss. 728, 113 So. 197, which cases are cited by appellant and we do not deny the law of any of these cases, but simply that this law does not apply here.
Referring still to the Howard Street property, we submit that it had been deeded to Rosa and Constance by a valid deed in 1940 and thereby it had been lifted out of Mrs. Dantone's will and was not a part of her estate at the time of her death. The rule of law is clear that the balance of the will is in no wise affected and the effect of the will as to other bequests and devises will remain.
"No change in the intention of the testator can be presumed either as to the object of his bounty, or the subject of his gift, from the subsequent conveyance of a part of the same property to the same donee or grantee by the testator. In such case the subsequent deed must be regarded as affecting the disposition of the will only pro tanto." Caine v. Barnwell, 120 Miss. 209, 82 So. 65.
"It is a firmly established rule of the common law, which is recognized in most jurisdictions, that where a testator, subsequent to the execution of a will, specifically devising lands voluntarily conveys the lands by an absolute conveyance, the will is revoked either pro tanto, or otherwise stated, the specific devise fails as to the lands conveyed. This is not so much because a revocation is deemed to have been intended, as that there is nothing to which the devise can operate." Lang v. Vaughan, 137 Ga. 671, 1913 Ann. Cas. 57.
The above case holds that if the entire estate of the testator is deeded away, the will is defeated, but: "If it is but a part, it affects the will no further than that part goes. If it is a partial interest only it will not operate as a revocation of the rest."
"A conveyance by a testatrix of property devised, does not result, strictly speaking, in a revocation of the will, but results simply in a withdrawal of the property so conveyed from the operation thereof." Gore v. Ligon, 105 Miss. 652, 63 So. 188.
"A deed executed by a testator after publication of his will is not a revocation of the will, unless the whole estate devised be conveyed by the deed. When the testator, after the publication of his will, executes a deed whereby he conveys only a portion of the estate devised, the deed will act as a revocation of the will only pro tanto and to the extent of the inconsistencies between them." Wells v. Wells, 35 Miss. 638.
In this Wells case this statement appears in the opinion of the court:
"In deed, 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."
In conclusion: —
1. It is said that the court erred in dismissing the bill of complaint. No proof whatever was tendered as to any phase of the case, except the validity of the deed of 1940, and appellant's own proof along this line not only signally failed to establish his case but in sober truth established appellee's case.
2. It is assigned as error that the court erred in holding that the half brother and half sisters of the complainant inherit through the intestacy of the testatrix. We submit that the court did not hold anything at all on this point and counsel admitted at Paragraph 11 of their brief that this assignment is inaccurate.
3. It is said that the court erred in not partitioning the property. This was not a case for partition either by allegation or proof and it would have been impossible for the chancellor to have decreed partition on this record.
4. It is said that the court erred in holding that Rosa Dantone, executrix of the will, could take by virtue of the will and also against it. We submit that she did not undertake to hold against the will in any particular. Allegations in the bill and the amended bills that she did so were denied in the answers and counsel did not undertake to offer any evidence whatever on the subject.
5. It is said that the court erred in placing the burden of proof on complainant (appellant). The rule is well established that one who sets up undue influence must prove it. However, omitting the element of undue influence and assuming that the bill set up a case of confidential relationship, appellant's own proof overcame the presumption of overreaching the grantor in the deed and established defendant's (appellee's) case.
6. It is said that the court erred in not considering admissions of the answers as evidence in the case. We find no such admissions that can remotely establish appellant's case. The complete pleadings and the paucity of proof taken together, as they must be, lamentably fail to establish complainant's case and the court could do nothing else than dismiss his bill.
7. It is said that the court erred in sustaining the demurrer to the second amended bill of complaint. This ruling was correct, but if it should be held in error, appellant is not hurt by it. His amended bill added only the charge of undue influence. He failed to prove it, and as above stated, his proof not only failed to establish confidential relationship, but overthrew any presumption in his favor.
Finally, there is nothing in this record, either in the pleadings or proof, that could have justified the chancellor in requiring defendants to proceed any further in the court below. Complainant there, appellant here, failed utterly and the decree of the court dismissing the bill and the several amended bills of complaint was the only one that the chancellor could enter.
Brossie Dantone, a grandson of B. Dantone and Catherine Dantone, filed his bill of complaint in the Chancery Court of Leflore County claiming ownership of an undivided interest in three separate pieces of property which, for brevity, will be here described as the Howard property, the residence property and the Johnson and Main Streets property. All of the living children of B. Dantone and his wife Catherine Dantone, being complainant's uncle and aunts, Billy Dantone, the son of John Dantone, a deceased son of said parties, and a first cousin of complainant, and Vincent Dantone, Jr., Mrs. Elizabeth Dantone Hill, and Catherine Dantone the half-brother and half-sisters of complainant, and the children of Vincent Dantone deceased, who was the father of complainant and also a son of B. and Catherine Dantone, were made parties-defendant. The bill prayed that complainant be decreed to own an interest in said real estate, and "that the said realty be sold for partition", and for general relief. The answers of the defendants denied that complainant owned any interest in the Howard property or the residence property, but admitted that he owned an interest in the Johnson and Main Streets property. The answers of the defendants also denied the right to a sale for partition.
We will first recite the facts regarding the residence property. This property belonged to B. Dantone, the grandfather of complainant, who died in 1920, leaving his widow, Catherine Dantone and their six children, the survivors being defendants in this suit, along with the children of those of the two who have died. Under the will of B. Dantone, the residence property was devised to his wife, Catherine Dantone, for life, with remainder over to two of his daughters, Constance Dantone and Rosa Dantone. No attack is made, in this proceeding, upon the will of B. Dantone and the remainder interest in the residence property vested in Constance and Rosa Dantone under the will of their father, at his death. Complainant owns no interest in this property, and has no right to a partition thereof.
Catherine Dantone, the widow of B. Dantone, in 1908, and before the death of B. Dantone in 1920, purchased, from one F.R. Austin, the Howard property which is located in the business section of Greenwood and is said to be of great value. On March 13, 1940, Catherine Dantone, in consideration of love and affection, conveyed this property by warranty deed to her two daughters, Constance Dantone and Rosa Dantone. Catherine Dantone had before that time, on November 14, 1929, executed her will, under Item 2 of which she had devised this Howard property to Constance and Rosa. In 1944, Constance Dantone died, leaving a will, and by the terms of which she devised all of her property to Rosa. Though the mother, Catherine Dantone, had executed her will in 1929, as aforesaid, she did not die until August, 1946, two years, approximately, after the death of her daughter Constance.
It was alleged in the bill that Catherine Dantone came to this country from Italy some fifty years before her death, but never learned to speak the English language or understand it when spoken, and, that after the death of B. Dantone in 1920 she lived in the residence alone with two daughters Rosa and Constance, who occupied a relation of trust and confidence toward her, acted as her agents in all her business transactions, acted as her interpreters, and that a confidential relationship existed between her and her daughters, Rosa and Constance.
(Hn 1) It is argued by appellant that under the doctrine of Ham v. Ham, 146 Miss. 161, 110 So. 583; Risk v. Risher, 197 Miss. 155, 19 So.2d 484; Watkins v. Martin, 167 Miss. 343, 147 So. 652; and Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790, the deed from Catherine Dantone to Rosa and Constance is presumptively void because of this confidential relationship between the parties, and that the burden was on the grantees therein to show by clear and convincing testimony that the grantor acted with full knowledge and independent consent and action. However, when we look to the admission of facts in the answers, and to the proof offered by appellant to support his claim of confidential relationship, from which the presumptions above mentioned must, if ever, arise, we find it is wholly insufficient to establish any relation of principal and agent, or any other conventional fiduciary relationship or any fiduciary relationship whatever in fact. The chancellor necessarily so held in the court below, and we find he was manifestly correct therein. We find no vice in the deed from Catherine Dantone to her daughters Rosa and Constance because of any confidential relationship or undue influence, and, on the facts here, the deed is free from any defect on account thereof. There is no merit in counsel's contention.
(Hn 2) But, it is urged further that Rosa Dantone cannot take under this deed for the further reason that Catherine Dantone died in 1946, and Rosa offered her will for probate and was appointed executrix to administer the will; that if she takes under the deed, she will be taking against the will and the doctrine of election applies, under Barrier v. Kelly, 82 Miss. 233, 33 So. 974, 62 L.R.A. 421; West v. West, 131 Miss. 880, 95 So. 739, 29 A.L.R. 226; Welch v. Welch, 147 Miss. 728, 113 So. 197. For these cases, we have great respect, but they have no application here. Here, Catherine Dantone, in 1929, made her will, and by its terms devised this property to her two daughters, Rosa and Constance. Later, in 1940, she deeded this same property to the same two daughters to whom she had theretofore devised it in her will. When, after the publication of her will, she executed a deed whereby she conveyed this property (only a portion of the estate devised by the will) to the same grantees to whom she had devised it, she did not thereby evidence any intention to particularly revoke the will pro tanto but merely evidenced a desire to hasten the time when the devisees might enjoy the property. The specific devise under the will fails, it is true, but this is not so much because a pro tanto revocation is deemed to have been intended as that there is nothing on which the devise can operate. When Catherine Dantone died in 1946, she had already deeded the property to the devisees and the title had vested in them, and she did not then own the property so it could not pass under the will. (Hn 3) This, of course, operates as a pro tanto revocation but only to the extent of the property deeded, and revokes the will in no other particular. Hence, when the deed from Catherine Dantone to Rosa and Constance was delivered, the title immediately vested in them. When Constance died in 1944, her half interest passed under her will to Rosa. When Catherine died, in 1946, Rosa already owned the entire property, and Catherine owned no interest that could pass under her will. This was a pro tanto revocation of the will only to the extent of this property. Caine v. Barnwell, 120 Miss. 209, 82 So. 65; Lang v. Vaughn, 137 Ga. 671, 74 S.E. 270, 40 L.R.A. (N.S.) 542, Ann. Cas. 1913B, 52, 57; Gore v. Ligon, 105 Miss. 652, 63 So. 188; Wells v. Wells, 35 Miss. 638. Rosa, in taking under the deed, is not taking against the will. From what we have said, it follows that the complainant owned no interest in the Howard property, at the time of the filing of his bill, and held no right to any partition thereof.
As to the Johnson and Main Streets property, defendants admit in their answers that the complainants own an undivided interest. Catherine Dantone acquired this property from one W.C. Taylor in 1918. Under Item 3 of her will, she devised this and other property to her six children: Mary Giardina, Constance Dantone, Vincent Dantone, John Dantone, Joe Dantone, and Rose Dantone. By Item 7 of said will, it was provided: "Should my son, Vincent Dantone, die before I do his share of the property hereby devised and bequeathed shall go to his son Brossie Dantone. Should any other of my children die before I do, then the share herein devised or bequeathed to such child shall go the child or children of such deceased child." Vincent Dantone predeceased his mother. Constance Dantone also predeceased her, leaving no child. By Item 9 of the will, it was provided: "I hereby give and bequeath all my cash and all other personal and real property of which I may die seized and possessed equally to my six children hereinbefore enumerated."
The chancellor, in the lower court, did not adjudicate the proposition of complainant's interest in the Johnson and Main Streets property, and his failure so to do is not assigned as error here. We, therefore, will not at this time pass upon the question of the size of the proportionate interest in said property owned by the complainant. Rule 6 of Supreme Court of Mississippi.
(Hn 4) As above stated, the answers of the defendants admit the complainant owns an undivided one-sixth interest in this property. It is argued, however, that this bill cannot be considered a bill for partition because it does not contain the necessary allegations. The bill, however, does allege that the complainant owns an undivided interest in this property under the will of Catherine Dantone, and the law determines that he holds as a tenant in common from the allegations of his bill. He does not allege that the tenants in common are in possession, or have a right of possession, but the right of possession is an incident to the ownership alleged in the bill. Section 1284, Code of 1942 only requires that a bill contain a statement of facts on which complainant seeks relief, in ordinary and concise language and, after examining the bill in this case, we are of the opinion it contains a sufficient statement of facts to support a partition. In the interest of justice, if, from the whole pleading, it can be seen that there is substance to the suit, and there is revealed enough to show equitable merits the Court will go far towards entertaining the bill. We think such a case is here presented, and that the bill is sufficient in substance to support a decree of partition. Griffith's Chancery Practice, Section 170, p. 163.
(Hn 5) The special prayer of the bill is that the property be sold for partition. However, before a sale can be ordered in the first instance, it is required by Section 965, Code of 1942, that the court must be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or that an equal division cannot be made before it can order a sale of the lands for a division of the proceeds of sale. No proof is shown in this record covering this matter. Hence, there is no proof or admission from which the court could form an opinion as to whether the land is susceptible of partition in kind, or whether a sale would better promote the interests of the parties, and the court cannot order a sale for partition. (Hn 6) But, the bill does contain a prayer for general relief, and under this the complainant may have any other relief than that specifically prayed if it be within the scope of the facts of the bill, and not inconsistent with the purpose of the bill, and which cannot be said to surprise the defendant. Griffith's Chancery Practice, Sec. 186, p. 182. The bill, therefore, being sufficient in substance and containing a prayer for general relief, it is sufficient to support a decree for partition in kind.
The learned chancellor correctly held that the complainant owns no interest in the Howard property or in the residence property, but overlooked, apparently, the Johnson and Main Streets property, and this led to his dismissal of the bill of complaint. In this, the court erred. On the bill, as drawn, he should have retained it and decreed a partition in kind of the Johnson and Main Streets property, and for this error, the decree of the lower court is reversed and the cause is remanded.
Affirmed in part, reversed in part, and remanded.