Armstrong v. Thomas

• Decision Date: 20 November 1916
• Docket Number: 17788
• Citation: 72 So. 1006,112 Miss. 272
• Court: Mississippi Supreme Court
• Parties: ARMSTRONG ET AL. v. THOMAS ET AL

72 So. 1006

112 Miss. 272

ARMSTRONG ET AL. v. THOMAS ET AL

No. 17788

Supreme Court of Mississippi

November 20, 1916

APPEAL from the chancery court of Monroe county, HON. T. L. LAMB Chancellor.

Bill by J. W. Thomas and others against F. Marion Armstrong and others for the cancellation of defendant's claim to land and for the partition thereof. From a decree overruling a demurrer to the bill, defendants appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

D. W Houston, Sr. & Jr., for appellant.

W. H Clifton, for appellee.

OPINION

SMITH, C. J.

This is an appeal from a decree overruling a demurrer to a bill praying for the cancellation of appellants' claim to the land here in controversy and for the partition thereof among appellees as sole owners. The bill, among other things, alleged that Drury Armstrong devised certain lands, embracing that here in controversy, to his four daughters, Jane, Cinderella, Rosaline, and Drury Ann, all of whom survived him. The will provided that:

"Should any of my four daughters die without issue or bodily heirs their portion herein named shall descend to their surviving sisters or sister, and in the distribution of what I have given to my daughters I intend them to be equal respectively to share and share alike."

A part of the land devised was situated in Monroe and a part in Pontotoc county. In 1885 a partial partition of the land in Monroe county was made by the sisters Jane, Rosaline, and Drury Ann, conveying to Cinderella a portion thereof to be held by her in severalty, and she conveying to Jane, Rosaline, and Drury Ann her interest in the remaining portion thereof. In 1887 Drury Ann died without issue, leaving Jane, Cinderella, and Rosaline surviving her, who, after her death, made an oral partition among themselves of Drury Ann's share in the lands in Monroe county that had been released to them by Cinderella in the first partition by which sixty-eight acres thereof were set apart to Cinderella.

Afterwards Jane, Cinderella, and Rosaline sold and conveyed the lands in Pontotoc county and divided the proceeds thereof among themselves. Jane became the wife of J. W. Thomas and died in 1894, leaving her husband and three children surviving her. Cinderella became the wife of John A. Nabors, and died in 1912, leaving a daughter surviving her. Rosaline died intestate in 1913 without issue.

Part of the money received by Rosaline from the sale of the Pontotoc county land was deposited in bank and a part loaned at interest; she at the time of her death holding a certificate of deposit and a note therefor. Appellees, who are complainants in the court below, are the husband and children of Jane and the daughter of Cinderella. Appellants, defendants in the court below, as we understand the allegations of the bill, are heirs at law of Rosaline, and it seems, though it is not clear from the bill, that they together with the children of Jane and Cinderella constitute all of her heirs. The bill alleged that upon the death of Rosaline the children of Jane and Cinderella became the owners in fee of Rosaline's interest in the land here in question by virtue of the limitation over on her death without issue contained in the will of her father as hereinbefore set out, and prayed that the claim of appellants thereto as her heirs at law be cancelled as a cloud upon their title. The bill also prayed certain relief with reference to to Rosaline's personal estate.

As we understand the allegations of the bill no attack is made upon the three partitions hereinbefore set out of the property devised, but that on the contrary it proceeds upon the theory that these partitions are valid, and that the land to which the limitation over upon the death of Rosaline attaches is that set apart to her by these...