Davenport v. Collins

• Decision Date: 22 March 1909
• Docket Number: 13,661
• Court: Mississippi Supreme Court
• Parties: WILLIAM J. DAVENPORT ET AL. v. MAKEL M. COLLINS ET AL

48 So. 733

95 Miss. 358

WILLIAM J. DAVENPORT ET AL. v. MAKEL M. COLLINS ET AL

No. 13,661

Supreme Court of Mississippi

March 22, 1909

FROM the chancery court of Jefferson county, HON. J. T. DRAKE Special Chancellor.

Mrs Collins and others, appellees, were complainants in the court below; Davenport and others, appellants, were defendants there. From a final decree granting complainants relief defendants appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed, and bill dismissed.

Mayes &amp Longstreet, for appellants.

This litigation is over a plantation; and it arises between a testator's grandchildren who claim to be remaindermen under the terms of the will, on the one hand, and certain sub-vendees of his children themselves who claim that the effect of the will was to invest his children and widow with a fee simple title which they had a right to convey away, and did convey in fee.

The contention of the appellants in support of their title moves along three distinct lines, any one of which, if good, gives the title to them and requires a reversal of the chancellor's decree and a dismissal of this suit.

1. Appellants contend that the limitations of the title to the real estate which are contained in paragraph 3 of the will are not directed at, and do not control, the home place; but that this place, and the title to it, are controlled solely by the provisions of paragraph 5. In other words, that the home place, expressly dealt with, as it is in paragraph 5, beyond dispute, is one of the exceptions of real estate "otherwise disposed of in this will," made in so many words in paragraph 3 itself.

2. Even if the home place is to be taken as included within the estate dealt with by paragraph 3, then the provisions of paragraph 3 are such as that the rule in Shelley's case applied, and the heritable estate (in this case, by virtue of the statute, of fee simple instead of fee tail) vested in the first taker; and, therefore, the deed to Davenport passed a fee simple title. Powell v. Brandon, 24 Miss. 343; Dibrell v. Carlisle, 48 Miss. 691; Pressgrove v. Comfort, 58 Miss. 644; Cannon v. Barry, 59 Miss. 289; Harris v. McCann, 75 Miss. 805, 23 So. 631; Code 1880, § 1201; 25 Am. & Eng. Ency. Law, p. 640; Hudson v. Gray, 58 Miss. 882, 891, 892; Willis v. Foltz, 12 L. R. A. (N. S.) 283; Strawbridge v. Strawbridge, 4 L. R. A. (N. S.) 948; Lofton v. Murchison, 80 Ga. 391; Banking Co. v. Field, 84 Miss. 646, 657, 37 So. 139.

3. Again, even if it be considered that the home place falls within the real estate dealt with in paragraph 3, and even if it. be considered that the rule in Shelley's case does not apply, yet still the statute of 1822 against perpetuities does not apply, and by virtue of that statute, the first donee took a fee, and the deed to Davenport invested him with a fee. Lofton v. Murchison, 80 Ga. 391; Banking Co. v. Field, 84 Miss. 646, 37 So. 139.

W. C. Martin and Ratcliff & Truly, for appellees.

It is conceived that the real issues in this case are two: First, What kind of estate in his children and their issue was created by clause 3 of the will of Washington S. Burch? Second, Was the property mentioned in clause 5 governed by the limitations in clause 3?

The third paragraph contains the general scheme of the testator in the disposition of the bulk of his property; the time and manner of making the several possible divisions contemplated by it are provided for in clause 6. It was manifestly the desire and intention of Mr. Burch to keep his estate in the hands of his wife and three children, Eliza, Isaac and Mary, and the descendants of these children, at least until the death of the wife. and the three children. He provides for the division of the estate into four equal parts and gives to each of them one of the sharts so to be divided off and alotted, "to be theirs and each of theirs during their natural life, and to the children and heirs of their bodies, if any they have at the time of their death." Thus far the meaning is clear: His wife and children were each of them to have one allotted share for life, with remainder in fee to such issue as each should have living at the time of their respective deaths. Contemplating, however, the possibility that one or more of the life tenants might die without lineal descendants, the testator, in the next paragraph, provided for such a contingency by limiting over the share of any one of them who might so die to his estate in gross, to be re-divided among the same devisees or such of them as might then be living, and to their heirs, share and share alike, they to take a life estate only, and all the children of "my deceased children (if any) to take only such share as their deceased parent would have taken." At first glance this might appear somewhat obscure but a little consideration clears it up. The testator is here dealing with a lapsed share and its new division among his wife and surviving child or children. The expression "they to take a life estate only," evidently applies to the survivors who could re-divide the lapsed share, the word "they" meaning the surviving life tenants, and the expression "and all the children of my deceased children (if any) to take only such share as their deceased parent would have taken" while awkwardly phrased, perhaps, must mean that after the termination of each life estate the children of each life tenant would take his or her share in fee simple. It can mean nothing else; it cannot refer to the children of any of the four original life tenants who had died, because the contingency here provided for could arise only in case of such death without issue; so that the only children who could be embraced in the paragraph under consideration would be the children of the survivors of the four life tenants. This construction effectuates the purpose of the testator and is in perfect harmony with the first paragraph of clause 3. He divided his estate into four equal parts, giving his wife one and each of his named children one; they were severally to take a life estate in the same. In the event that any one of them died leaving children or lineal descendants, the fee in that share was to vest in such children or descendants, and it was freed from the ulterior limitations of the will. Should any one die without children, or descendants, instantly the whole estate in that original share passed, by limitation, over to the survivors, to be held by them, share and share alike, for life, with the fee in each share to go to their respective children. Should any of the new life tenants die without issue surviving, then, under the first paragraph, as the whole includes every part, that new share would again pass to the survivors, for life with the fee limited as before. As each life tenant died leaving children or descendants that portion of the estate held by the descendant under the will vested in fee in those children or descendants. In case all four died without leaving lineal descendants all the limitations over after termination of the life estate would fail for want of persons to take and the estate would vest in the heirs general of the testator. Should some of the four life tenants leave children but the last survivor die without any, that portion of the estate held by the surviving life tenant would go to the testator's heirs, who, in such case, would be the descendants of his children who had already died. Thus, in every contingency, the whole estate would go to the lineal descendants of the testator's children, if there were any living at the time of the death of the last survivor of the four original life tenants, and so the estate would be kept for life in those four, and after their death, would vest in fee simple in testator's grandchildren, or some remote posterity, as the case might be under the condition of the will. The only contingency possible that would defeat this result, or transmit the estate, or any part of it, to persons other than the testator's descendants, or heirs in general, was the remote possibility that Mrs. Burch would outlive all her three children, Isaac, Eliza Jane and Mary, that they would all die without issue, and that she herself would remarry and have issue by her second husband, who would, upon her death, take the estate. Of course, if Mrs. Burch should marry again and have other children and die before the decease of all her children by her marriage with Washington S. Burch, then under the limitation in clause 3 of the will the share allotted to her for life would pass in fee to all her surviving children, both those by the first and those by the second marriage. Under any conceivable circumstances the fee in all of the lands was bound to vest in somebody at the time of the death of the last survivor of the four original life tenants, who were all in being when Mr. Burch died, and, therefore, the limitations are not in violation of the rule against perpetuities and are valid. This will was probated in 1843 and was subject to the law as it then existed on this question. Under the Act of 1822, sec. 24, with proviso, a testator could make a conveyance to succession of any number of donees living at the time of his death, with ulterior limitations. Hutchinson's Code, ch. 42, sec. 24.

So the conveyance to a succession of four donees, who were all in being at the time of Mr. Burch's death, did not create a perpetuity. The rule in Shelley's case has no application since the intention of the testator throughout the limitations of clause 3 was perfectly clear that the words "children," "heirs," and "heirs of the body," as used therein, all meant descendants living at the death of the several life tenants, and not an indefinite succession to the remotest posterity, and were words...