Bibby v. Broome

• Decision Date: 03 December 1917
• Docket Number: 19614
• Court: Mississippi Supreme Court
• Parties: BIBBY ET AL. v. BROOME ET AL

76 So. 835

116 Miss. 70

BIBBY ET AL. v. BROOME ET AL

No. 19614

Supreme Court of Mississippi

December 3, 1917

Division A

APPEAL from the chancery court of Tallahatchie county, HON. JOE MAY Chancellor.

Bill to quiet title by Bessie C. Bibby and others against C. H Broome and others. From an order sustaining a demurrer to the bill, plaintiffs appeal.

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

Affirmed. Overruled.

McLean & Carothers and R. L. Cannon, for appellant.

J. C. Wilson and Tim E. Cooper, for appellee.

OPINION

SMITH, C. J.

Appellants exhibited their bill in the court below, praying that appellees' claim to certain land be canceled as a cloud upon their title thereto. A demurrer to the bill filed by appellees was sustained and the bill dismissed. The facts, as they appear from the bill, are that Mrs. S. O. Rhew died in 1880, seised and possessed of the land in controversy, leaving a will by which she devised it as follows:

"I give to Jas. P. Rhew (my adopted son) his natural life, my dwelling and all the land I now possess, except that herein donated or given to Miss Sarah Lee, and upon his death to his children, if any, and if he should die without leaving any living children or should die with children and they should die, thereupon or at their death, the dwelling, the land and all the improvements and appurtenances thereto belonging to be equally divided between Jodie Calhoun, Bessie Calhoun, and Sue Lee Cossar"

--who, it is admitted by the bill, are heirs of neither Jas. P. Rhew nor of his children nor of the testatrix.

In April, 1881, Jas. P. Rhew died, leaving three children, Jas. W., Julian P., and Emmitt Rhew, surviving him; the two first named having been born during Mrs. S. O. Rhew's lifetime, and the last named having been born about six months after her death. In April, 1905, Julian P. Rhew conveyed his interest in the land to his brother Jas. W. Rhew, and appellees claim title by means conveyances from Jas. W. and Emmit Rhew. Jas. W. Rhew died in 1908, but Julian P. and Emmit Rhew are still living.

Appellants claim as ultimate limitees in the will of Mrs. Rhew a two-thirds interest in the land therein devised; that is to say, the interest therein of Jas. W. and Julian P. Rhew; but if mistaken as to the interest devised to Julian P. Rhew, who is still living, then that they are entitled to the one-third interest devised to Jas. W. Rhew, deceased. According to appellee's construction of the will, the devise is to Jas. P. Rhew for life, with remainder to his children in fee, with a limitation over to Jodie Calhoun, Bessie Calhoun, and Sue Lee Cossar, contingent upon either of two events: First, the death of Jas. P. Rhew without children surviving him, and, second, in event Jas. Rhew should die leaving children, then upon both his and his children's death during the life of the testatrix.

According to appellants' construction of the will, the devise is to Jas. P. Rhew for life and, in event he should die without children surviving him, to Jodie Calhoun, Bessie Calhoun, and Sue Lee Cossar in fee; but in event he should die leaving children, and both he and they should survive the testatrix, then upon his death to his children for life, and upon their death to Jodie Calhoun, Bessie Calhoun, and Sue Lee Cossar in fee.

Should appellants' construction of the will be accepted, two further questions are raised by appellees: (1) Does this limitation over to Jodie Calhoun, Bessie Calhoun, and Sue Lee Cossar violate the second clause of section 2269, Hemingway's Code (section 2765, Code 1906) which provides that, "any person may make a conveyance or a devise of lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainderman, and in default thereof, to the right heirs of the donor, in fee simple"? and if not, then (2) Does this limitation over take effect as each of the children of Jas. P. Rhew shall die? or only upon the death of all of them?

By this will an estate for life to Jas. P. Rhew, with remainder in fee to his children, if any, is devised in clear and unmistakable language, as follows:

"I give to Jas. P. Rhew, my adopted son, his natural life, my dwelling and all the land I now possess, . . . and upon his death to his children, if any."

See section 2764, Code of 1906 (section 2268, Hemingway's Code).

The fee thus devised to Jas. P. Rhew's children may, of course, be cut down to a life estate by a subsequent provision of the will clearly expressing the testatrix's intention so to do. The language of the will which appellants claim has this effect is that immediately following the limitation over in event Jas. P. Rhew "should die without leaving any children," and is as follows: "And if he . . . should die with children and they should die, thereupon or at their death" to Jodie Calhoun, Bessie Calhoun, and Sue Lee Cossar. By this provision of the will the property devised is to go to the ultimate limitees in event of the death of the children of Jas. P. Rhew at a time not clearly expressed in the will and which must be ascertained, if at all, by construction.

The death of the children of Jas. P. Rhew is here dealt with as an uncertain event, and, since it would be absurd to speak of death, the one event which is sure to occur to all persons, as uncertain and contingent, we must presume that the testatrix meant not their death alone but their death at a particular time or under particular circumstances, and the rule, under numerous authorities, is that where a devise is followed by a limitation over in case the devisee should die, and it does not appear that the testator meant death under particular circumstances, it is presumed that he meant the death of the devisee before the vesting in him of the property in possession. In other words, where the devise is to A., and in case of his death to B., the gift over to B. will take effect only in event of A.'s death before that of the testator's; but if the devise is to A. for life, with remainder to B., and in case of B.'s death to C., the gift over to C. will take effect in event B. dies at any time before the death of A., whether prior or subsequent to the death of the testator. Sims v. Conger, 39 Miss. 231, 77 Am. Dec. 671; Nations v. Mortgage Co., 76 So. 642; Edwards v. Edwards, 15 Beav. 357; 20 Am. & Eng. Enc. of Law, 708; 3 Jarman on Wills (6th Ed.) 2144.

The will contains no words indicating that the testatrix intended the gift over to take effect on the death of these children under any particular circumstances, as for instance, their death without issue, so that of necessity, as well as under the rule hereinbefore referred to, we must presume that she meant their death at a particular time. She could have meant their death at any of three periods of time: First, at any time; second, prior to the death of their father, the life tenant; or, third, prior to the death of the testatrix. She clearly did not mean the first, for that was an event certain to happen, and she dealt with it as an event which might or might not occur. The second is excluded by the express language of the will. So we must presume that she meant their death during the only other period of time that can be conceived of in this connection, to wit, death during her own lifetime. In other words, by the language here used she was providing for the disposition to be made of her property in event neither Jas. P. Rhew nor his children survived her.

But if we should be mistaken in holding that the event here meant is death during the lifetime of the testatrix then the time at which the...