Dailey v. Houston

• Decision Date: 22 April 1963
• Docket Number: No. 42587,42587
• Parties: Willie DAILEY v. John HOUSTON et al.
• Court: Mississippi Supreme Court

Page 919

151 So.2d 919

246 Miss. 667

Willie DAILEY v. John HOUSTON et al.

No. 42587.

Supreme Court of Mississippi.

April 22, 1963.

Ben M. Caldwell, Marks, Caldwell & Caldwell, Charleston, for appellant.

Breland & Whitten, Sumner, for appellees.

ETHRIDGE, Justice.

This case involves principally that ancient nemesis of testamentary construction: a gift, after a life estate, of remainder to the heirs of testator and another person. Specifically, we are concerned with the nature of remainders created by a will giving a life estate to testator's spouse, with remainder to be divided equally between testator's heirs and his wife's heirs. Under the particular circumstances, we hold that both remainders are contingent, with the remaindermen to be determined and their interests to be vested at the death of the life tenant. The chancery court correctly held to that effect.

In 1916 Grant Thompson, the testator, married a widow named Bertha Dailey, who had a small son, Willie Dailey, by her prior marriage. Soon after this, Thompson purchased a farm near Charleston, in Tallahatchie County, on which he, his wife and stepson began living. As the years went by Thompson bought other land in the vicinity, until at the time of his death he owned more than 300 acres. During part of this period, some of Thompson's relatives lived on his farm as tenants, but, by the time of his death in 1955, none of his immediate relatives were there. Dailey, the stepson, had married and owned a farm next to Thompson.

Thompson's land consisted of two tracts. Parcel 1 contained 184 acres. Parcel 2 consisted of 132 acres, including improvements and the family home. In 1928 he conveyed to his wife, Bertha, a one-half interest in Parcel 2. In 1949 Thompson had a lawyer prepare the will involved in this suit. He executed it, and died in 1955 at the age of 85 years. He and his wife had no children. She was his only heir at law.

In Item I testator bequeathed to his wife, Bertha, all personal property, including crops, stock and money. Item II provided:

'I give, devise and bequeath to my beloved wife, Bertha, the use of all the real property owned by me at the time of my death as long as she shall live and upon her death one half to be divided among her heirs and one half to be divided among my heirs but subject to the following charge mentioned in Item III.'

Item III stated that, before his real estate should be divided, $1,000 should be given to the Charleston Colored High School for educational purposes, and, unless his wife gave this amount, either by will or otherwise, then it should be a lien on the real estate. Testator appointed his wife as executrix without bond, inventory or accounting.

At the time of Thompson's death, Bertha was 71 years of age. She died testate four years later (1959), at the age of 75 years. During that interim period, Bertha married John Houston. At the time of her death, Bertha's heirs at law were her son, Dailey, and her husband, Houston. On Thompson's death, his sole heir was his wife, Bertha. At the time of Bertha's death in 1959, Thompson's heirs at law, under the statute of descent and distribution, were a sister, who died in 1956, and the surviving children of two other sisters, who predeceased the testator. Shortly after Thompson died, Bertha conveyed the one-half interest she owned in Parcel 2 to her son. There were other conveyances by interested parties.

In 1960 Bertha's third husband, John Houston, and others, brought this action in the Chancery Court, First Judicial District of Tallahatchie County, against Dailey. The amended bill of complaint alleged that the heirs of Bertha under Thompson's will, determined at the time of her death, were her son and her surviving husband; that the heirs of Thompson should also be determined under his will at the date of the death of the life tenant, and, if this were done, they would consist of the children and grandchildren of the deceased sisters. Houston had purchased the interests of certain Thompson heirs. Some of the Thompson heirs had conveyed to Dailey all of their interests in testator's estate. The bill asked for a partition by sale. Dailey's answer asserted the heirs of both testator and the life tenant should be determined on the date of testator's death, and the partition should be in kind.

The chancery court held it was Thompson's intent that his heirs, as well as those of the life tenant, should be determined as of the date of Bertha's death. He accordingly apportioned the one-half interest devised to the heirs of Bertha to her son, Dailey, and her third husband, Houston. The one-half devised to testator's heirs, determined at the life tenant's death, was divided among them accordingly. The trial court ordered the land to be partitioned by sale. From that decree this interlocutory appeal was taken.

I.

Limitations in favor of 'heirs' give rise to problems substantially different from those pertaining to 'children' or 'issue,' because the primary meaning of 'heirs' depends on statutes concerning the intestate succession of property. There are numerous and often irreconcilable precedents. The primary meaning of the word 'heirs' connotes those persons who, under the applicable law, would succeed to property if the designated ancestor died owning the property and intestate at the time when the group of takers is to be ascertained. 3 Powell, Real Property (1952), sec. 372. Accordingly, where the class of beneficiaries is described as 'heirs' or 'next of kin' of the testator, the class is determined as of the death of the testator, unless the will reflects a contrary intention. 4 Page on Wills (Bowe-Parker Rev., 1961), sec. 35.9; 33 Am.Jur., Life Estates, Remainders, etc., sec. 137.

Two principal reasons usually are given for determining the members of the class on the death of the testator--the preference of the law for vested remainders, and the idea that, after making special provisions for disposition of his property, the testator does not care to follow the property further, but is content to let the law take its course as intestate property. For reasons stated later, these two premises for the general rule are not dominant in the instant case. However, several Mississippi decisions have applied it, determining 'heirs' on testator's death, in the absence of contrary circumstances and evidence of a different intent. McDaniel v. Allen, 64 Miss. 417, 1 So. 356 (1886); Alexander v. Richardson, 106 Miss. 517, 64 So. 217 (1913); Schlater v. Lee, 117 Miss. 701; 78 So. 700 (1918); White v. Inman, 212 Miss. 237, 254, 54 So.2d 375, 30 A.L.R.2d 380 (1951); Dunlap v. Fant, 74 Miss. 197, 20 So. 874 (1896); Branton v. Buckley, 99 Miss. 116, 54 So. 850, L.R.A.1917C, 527 (1911); Harvey v. Johnson, 111 Miss. 566, 71 So. 824 (1916).

Cases which depart from this general rule may be classified broadly 'into (1) those which select a different group of persons from the traditional group, and (2) those which select the persons as of a different time.' Simes, Knouff, Leonard, The Meaning of 'Heirs' in Wills--A Suggestion in Legal Method, 31 Mich.L.Rev. 356, 359 (1932). The same case may involve a departure in both respects, as here.

With reference to the time at which the class of heirs is determined, there are three different interpretations: (1) 'heirs' as determined at the death of the testator, (2) 'heirs' as determined at the death of the life tenant, and (3) 'heirs' as determined at the time specified for the future interest to take effect in possession or to vest in interest, other than at the times mentioned above. Under the general rule, absent a contrary intent, a class gift to testator's heirs would ordinarily be determined on the date of testator's death.

Conversely, a class gift to the 'heirs' of one other than the testator, here his wife, ordinarily depends, absent a contrary intention, upon the time of the death of such other person, who dies after the testator. The gift is to take effect at the termination of the particular, life estate which is vested in the person to whose heirs the gift is made. The time is usually the death of the particular tenant. It terminates his estate, and the interests of his then heirs take effect. 4 Page on Wills, sec. 35.10. In short, ordinarily a class gift to testator's wife for her life, with remainder to her heirs, would determine the heirs at the death of the life tenant.

In the instant case, both types of class gifts following a life estate are present. Thompson devised to his wife, Bertha, a life estate, and 'upon her death, one-half to be divided among her heirs and one-half to be divided among my heirs * * *.' Under the presumptive rule, Bertha's heirs would be determined at her death, and the testator's heirs at his death. Both class gifts have a double aspect: If the remaindermen are determined at testator's death, they have vested remainders. If they are fixed at the death of the life tenant, they have contingent remainders. The nature of the remainder estates, vested or contingent, and the time of determination of the remaindermen who take, are interrelated and dependent one upon the other.

Hence the precise questions here involve both the nature of the remainders created by Thompson's will, and determination of the time of ascertaining the remaindermen. Considering all relevant factors, we think the will created contingent remainders in two classes, the heirs of the life tenant, and of the testator; and the remaindermen in both classes are to be determined as of the time of the death of the life tenant.

The annotation in 19 A.L.R.2d 371 (1951) collects most of the cases dealing with the nature of remainders created by wills giving a life estate to the spouse of testator, with remainder to be divided equally between testator's heirs and spouse's heirs. The alternatives are 'presumptive rules of construction rather than arbitrary devices. The intent of the testator controls.' White v. Inman, ...