Boone v. Baird

• Decision Date: 02 December 1907
• Docket Number: 12866
• Citation: 91 Miss. 420,44 So. 929
• Court: Mississippi Supreme Court
• Parties: SARAH A. BOONE v. JASPER C. BAIRD

44 So. 929

91 Miss. 420

SARAH A. BOONE v. JASPER C. BAIRD

No. 12866

Supreme Court of Mississippi

December 2, 1907

FROM the chancery court of, first district, Hinds county, HON. G GARLAND LYDELL, chancellor.

Mrs Boone, appellant, was complainant in the court below; Baird the appellee, was defendant there. From a decree in defendant's favor the complainant appealed to the supreme court.

Affirmed.

Wells &amp Wells, for appellant.

Not only did the deed to Drucilla Bradley convey a life estate to her but the effort to convey the balance of the fee not conveyed to Drucilla Bradley his wife by name, to the heirs of the grantor Robert Bradley was void and being void the life estate was increased by reason thereof to a fee simple title. We contend that a conveyance of real property to one's own heirs is void whether it be a conveyance of a fee simple title or of a portion of the fee.

We first cite the court to its adjudication of this point as found in Harris v. McLaran, 30 Miss. 533, and especially 569-570. Before reviewing that authority we pause to point out to the court the argument pressed on the lower court by the defendant that the words found in the deed to-wit "all estate title and interest both at law and equity of the party of the first part in the same" used by old man Bradley operated to divest him of all title which he had; that is that it was the intention of old man Bradley to divest himself of his whole title. In which argument he is supported by Caldwell v. Willis, 57 Miss. 575, at bottom of page, where in exactly similar instrument the court held that such intention on the part of the grantor was "perfectly manifest."

If a reversion was created by operation of law by reason of the limitation over to Robert Bradley's heirs being void and thereby Drucilla Bradley's estate was not increased to a fee simple one, then that interest in reversion on the death of Robert Bradley being an estate of inheritance passed to his two heirs, Robert D. Bradley and Drucilla Bradley, in equal parts; and this case should be reversed and remanded with directions to the chancellor to proceed on that theory.

The remainder created by the deed was a contingent one which became a vested one immediately on the death of Robert Bradley; that is the remainder became vested in the heirs of Robert Bradley at his death and the heirs were Drucilla Bradley the life tenant and Robert D. Bradley the son.

We cite the court further in support of this proposition to the case of McDaniel v. Allen, 64 Miss. 417. We quote from the syllabus which is fully sustained by the opinion:

"In 1881 B died and by his will left his real estate to his wife for her life and on her death to be divided equally among the heirs of my (his) body. In 1882 J one of the children of B died. In 1883 the widow of B died. Held, that J took a vested remainder under the will; that the remainder was limited by the will to the heirs of the body of B surviving at his death, and not to those surviving at the death of the life tenant."

Now we submit that we have proved our proposition (that there is not a Mississippi authority opposed to this position taken by us that we could find) that at the time of the making of this deed by Robert Bradley to his wife that it was a settled rule of property that the word "heirs" used in this way is a deed or will means the heirs at the death of the testator or grantor. Drucilla Bradley was presumed to have known the law as also old Mrs. Bradley and it is to be presumed that they had the deed drawn in accordance with that settled construction of the law which had become a law of property.

Williamson, Wells & Peyton, for appellee.

Appellant contends that the deed to Mrs. Drucilla Bradley was in violation of the statute against perpetuities, and that it conveyed a fee simple title to Drucilla Bradley instead of a life estate. We hardly think the court will consider this contention seriously. On the subject of Estates in Fee Tail, we quote section to the Mississippi Code of 1906:

"2765. Estates in Fee Tail Prohibited. 'Estates in fee tail are prohibited; and every estate which, but for this statute would be an estate in fee tail, shall be an estate in fee simple; but any person may make a conveyance or devise of said lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainderman of the donor in fee simple.'"

So under the terms of the statute a deed conveying property even to the heirs of the body of the remainderman would not be a limitation in violation of law. Much less would it be an illegal limitation after the termination of a particular estate to the heirs of the grantor, as in the case at bar. On this point we cite the court to the case of Middlesex Banking Co. v. Field, 84 Miss. 646, in which case the court held that the right heirs of the donor take by purchase and not by inheritance, and that the statute quoted above is to prescribe a limit of time beyond which the vesting of the estate cannot be suspended, but within the limit it permits the exercise of an unbounded discretion of the donor. That limit was not violated in the case at bar, but if the court has any doubt upon this point, we will ask the careful reading of the case cited above.

The second contention of counsel is that the remainder provided for in this deed, was a vested one, and that immediately upon the execution of the deed, Mrs. Bradley being the wife, and one of the legal heirs, a one-half remainder interest vested in her. Upon this proposition we have this to say. Under the provisions of the deed in this case, the remainder did not vest until the termination of the life estate, because, clearly, by the deed itself, it was the intention of Robert Bradley that the interest which his wife, Drucilla Bradley, should have in said property was a life interest only, and that the remainder should vest and take effect at her death, and the title should then revert from the channel in which he had placed it by this deed for the natural life of his wife, from her heirs back to his heirs and that this vesting of the remainder should not happen until the event of her death. Robert Bradley had no heirs until his death, as contended by counsel, and therefore Mrs. Bradley was not one of his heirs at the time of making the deed, and the vesting of the remainder interest did not occur until after her death. Robert Bradley clearly, from all these circumstances that surrounded him, and the fact of his connection with his wife and only son, had in contemplation only these two persons, his wife and his son. He gave to his wife a life estate and mentioned her no further. He gave to his son Robert D. Bradley, or to any other heir he might have at the time of the death of Mrs. Drucilla Bradley, the remainder. He used the word "heirs" because perhaps at the time of his wife's death, his son Robert D. Bradley, might have died and left children living, who would be the heirs of their grandfather. Robert Bradley never thought for a moment at the time he made that deed, nor did he intend for a moment that some distant relative, perhaps a third-cousin of his wife, Drucilla Bradley, would come in after her death and claim an interest in the property. He thought and intended that it should go to his son Robert D. Bradley, or the heirs of his son who might be living at the time of the termination of this particular estate. In the case of Harkleroad v. Bass, 36 So. 537, the court holds that the word "heir" in a will is presumed to have been employed in its technical sense, unless there is in the will a clear demonstration that the testator used it in a different sense, in which case effect will be given to his intentions.

The rules for the construction of a will and a deed in this state are identical, as will be seen from the...