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Gibbons v. McDermott-Opinion of Court.

L. IV. Bethel for Appellant.

W. C. Maloney, Jr., and George P. Raney for Appellee. THE CHIEF-JUSTICE delivered the opinion of the court:

This is an appeal from a decree declaring that the will of Olivia Gibbons dated October 30, 1877, was revoked by the subsequent marriage of the testatrix to John L. McDermott, the complainant, and the birth of her son, James L. McDermott, as prayed in the bill. The object of this appeal, according to the petition of appellant, is to reverse this de

cree.

Another question, however, is presented by an inspection of the bill. It is brought "against John E. Thompson, as the executor of the last will and testament of Olivia Gibbons, deceased, and against George Edward and Thomas Eugene Gibbons, minor children of the said Olivia Gibbons, deceased, as aforesaid, by their guardian, John E. Thompson." These minors are children of the testatrix by a former marriage. The prayer of the bill is that the will be set aside "as illegal and utterly void," &c. The prayer for subpoena asks that the writ be "directed to the said John E. Thompson, as executor of the last will and testainent of Olivia Gibbons, deceased, and to George Edward and Thomas Eugene Gibbons, minor children of the said Olivia Gibbons, through their guardian, John E. Thompson."

The subpoena was served on "the said J. E. Thompson. No service was made on the minor children, who were the legatees of the entire real and personal property under the will of their mother.

The decree prayed for directly affected their interest in the estate of their deceased mother, and they were therefore necessary parties to the suit. The decree was made

Gibbons v. McDermott--Opinion of Court.

without making them parties and obtaining jurisdiction of their persons.

There is no statutory provision regulating service of process upon minor defendants. It is controlled by the general rule in chancery, which is that "in a suit against an infant process should be served upon him and a guardian ad litem appointed by the court." Brock et al. vs. Doyle, 18 Fla., 172; Carrington vs. Brents, 1 McLean, 167; Walker vs. Hallett, 1 Ala., 379; Graham vs. Sublett, 6 J. J. Marsh., 45; 1 Barb., Ch. Pr., 51; 1 Dan. Ch. Pr., 153; *161, n. 1; Eq. Rule 36, Fla.

The citation of a minor should be served in the presence of his legal guardian, or in the presence of some person upon whom the actual care or custody of the minor, for the time being, has properly devolved. Kellett vs. Rathbun, 4

Paige, 102, 106.

In Massachusetts it was lately held that a guardian ad litem need not be appointed if the infant has a probate or general guardian, unless the interests of the infant and the guardian are in conflict. Mansur vs. Pratt, 101 Mass., 60. The authorities cited for this rule are principally cases at law in the courts of that State. The rule in equity is thus stated in Parker vs. Lincoln, 12 Mass., 19: "The course in chancery, where an infant defendant does not appear voluntarily, is, to send an officer to bring him into court, and then a guardian is appointed to defend his interests in the suit." * "It is still necessary to appoint a guardian, notwithstanding Lincoln, his legal guardian, is made a defendant." And this is one of the cases cited by Hoar, J., in Mansur vs. Pratt.

It has been held that where service is made upon the general guardian and he appears and makes the defence required by law, and is heard by the court as the representative of the infant, such action is equivalent to his appoint

Gibbons v. McDermott-Opinion of Court.

ment as guardian ad litem. Price vs. Winter, 15 Fla., 67, 104; Beverleys vs. Miller, 6 Munf., 99. The cause should not be heard without answer of the infant defendants. Henly vs. Gore, 4 Dana, 136.

In the case at bar Thompson is named in the bill as executor of the will and as guardian of the infants. Service of subpoena was made upon "the said Thompson,' but not upon the infants.

Thompson appears and answers as executor and not as guardian, nor in behalf of the minors. There can be no default taken against infants. 4 Dana, 136. They are, therefore, not before the court. The decree in nullifying the will under which, if valid, the entire estate goes to these two children was erroneous.

For the same reason (that the infants are not before this court) it becomes improper to decide whether the will was revoked by the subsequent marriage. The following authorities, however, bear upon the question:

Chancellor KENT, in 4th Commentaries, 578 (12th Ed., p. *527), says: "The will of a feme sole is revoked by her marriage. This is an old and settled rule of law; and the reason of it is, that the marriage destroys the ambulatory nature of the will, and leaves it no longer subject to the wife's control. It is against the nature of a will to be absolute during the testator's life, and therefore it is revoked in judgment of law by the marriage."

This was held in Cotter vs. Layer, 2 Peere Wms., 623; Joe ex dem. Hodsden vs. Staple, 2 T. R., 684, 695, 697; Hodsden vs. Lloyd, 2 Bro. Ch., 534, 544; 2 Roper, Husband and Wife, 69; 1 Jarman on Wills, 4th Am. Ed., 150; Redfield on Wills, 293. $24: I Wms. on Exec. (192), 228, 6 Am. Ed. by Perkins.

We forbear expressing an opinion or entering any judgment upon this branch of the case. If it should again

Patrick v. Sears-Opinion of Court.

come before this court it might become necessary that the question of the power of a married woman to make a will or to change or republish a will made before her marriage, as the law stood in this State at the time of the marriage, should be fully argued by counsel.

Upon the ground of the absence of necessary parties, the decree appealed from is reversed, and the cause remanded for such further proceedings as may be had in accordance with the practice in equity cases.

WILLIAM A. PATRICK, APPELLANT, VS. WILLIAM J. SEARS. APPELLEE.

A bill to enforce specific performance of a written contract for the sale of land which does not describe or in any manner identify the land to be conveyed, otherwise than "near Kissimmee City, in Orange county, to be selected by his (purchaser's) agent," can not be sustained. Parol evidence cannot be admitted to supply a description of land not identified in the writing.

Appeal from the Circuit Court for Orange county.
The facts of the case are stated in the opinion.
St. Clair Abrams & Summerlin for Appellant.

Hammond & Jones for Appellee.

THE CHIEF-JUSTICE delivered the opinion of the court: Sears filed his bill in equity against Patrick to enforce the specific performance of the following contract:

"I have agreed to sell W. J. Sears five acres of land near Kissimmee City, in Orange county, Florida, for one hundred dollars, to be selected by his agent. January 13, 1882. W. A. PATRICK."

Patrick v. Sears-Opinion of Court.

Sears appointed W. J. White as his agent to select the land. White selected the five acres and notified Patrick in writing that he had selected it, describing the land selected, and as the agent of Sears tendered one hundred dollars in payment and demanded a deed. Patrick refused to take the money or to give a deed.

Patrick demurred to the bill for want of equity. The Chancellor overruled the demurrer, and from this order the appeal is taken.

This is not such an agreement as may be enforced in equity, because the land is not identified in it, nor did either party contemplate any particular five acres. It could only be ascertained by the action of the agent chosen to select it, and proved by the testimony of the agent or other witnesses.

In Parteriche vs. Powlett, 2 Atk., 383, Lord Hardwicke says: "To add anything to an agreement in writing, by admitting parol evidence which would affect lands, is not only contrary to the statute of frauds and perjuries, but to the rule of the common law before that statute was in being." In the case of Brodie vs. St. Paul, 1 Ves. Jr., 326, Mr. Justice Buller says: "The question here is, what is the agreement? The whole depends upon parol. If the agreement is certain, and explained in writing, signed by the parties, that binds them; if not, and evidence is necessary to prove what the terms were, to admit it would effectually break in upon the statute and introduce all the mischief, inconvenience and uncertainty the statute was designed to prevent." And see Clinam vs. Cooke, I Sch. & Lefroy, 22, decided by Lord Redesdale. A specific performance will only be decreed where a specific thing is agreed to be conveyed. Shelton vs. Church, 10 Mo., 774.

If the agreement does not point out and identify the premises it is too vague and uncertain to be enforced, and

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