Dunlap v. Fant

• Decision Date: 16 November 1896
• Citation: 20 So. 874,74 Miss. 197
• Court: Mississippi Supreme Court
• Parties: V. V. DUNLAP, EXR., v. A. E. FANT ET AL

20 So. 874

74 Miss. 197

V. V. DUNLAP, EXR., v. A. E. FANT ET AL

Supreme Court of Mississippi

November 16, 1896

October 1896

FROM the chancery court of Noxubee county HON. T. B. GRAHAM chancellor.

Andrew Conner died in 1853, leaving a will in which the following clause occurs: "I will and devise all my real estate to my beloved wife, Rosanna, for and during her natural life for the use and benefit of herself and such of her children as shall live with her, . . . and upon the death of my said wife, said real estate shall go and descend to my lawful heirs, share and share alike. But not to be divided or disposed of until my daughter, Mary A. E. Conner, attains to the age of twenty-one years or marries, at which time, if my wife be not living, said real estate shall be divided equally among my said children, and if either of my said children be then dead, leaving a child or children, such child or children shall have the portion to which the parent would have been entitled, if living; and should any of my said children die, leaving no issue, then their portion shall descend to my other heirs."

The testator had several children at the time of the execution of the will, all of whom survived him. All did not, however survive their mother, the life tenant of the estate. Among those who died during the continuance of the life estate was Mrs. N. L. Cavett, who left two children surviving her, John C. Cavett and Emmett D. Cavett. Mrs. V. V. Dunlap was a purchaser at execution sale, in the lifetime of Mrs. N. L. Cavett, under a judgment recovered against her and John C. Cavett in the lifetime of Mrs. Conner, and received a sheriff's deed purporting to convey to her the interest of Mrs. N. L. Cavett. After the death of Mrs. N. L. Cavett Mrs. Dunlap purchased, under the same judgment, the interest of John C. Cavett, and also bought at execution sale under a judgment against Emmett D. Cavett. The judgment against Emmett D. Cavett was one rendered by a justice of the peace, and no transcript of the proceedings had been filed in the chancery clerk's office, as required by § 2211, code 1880, and § 3499, code 1892. The proceeding was one for a partition brought by Mrs. A. E. Fant, one of the children of Andrew Conner, against the other heirs and Mrs. Dunlap, and was not instituted until after the termination of the life estate. The interest claimed by Mrs. Dunlap in the property, as purchaser at execution, sale was the only matter contested between the parties. On final hearing, it was decreed that Mrs. Dunlap took nothing by her alleged purchase of Mrs. Cavett's interest at execution sale in her lifetime; that Mrs. Cavett's children, John C. and Emmett D., became, at her death, entitled to the interest that would have gone to her had she survived her mother; that Mrs. Dunlap was entitled to the interest of John C. Cavett, but not that of Emmett D. Cavett, a failure to file in the proper chancery clerk's office a transcript of the proceedings of the judgment under which it was sold being shown. Mrs. Dunlap appealed.

Decree affirmed.

T. J. O'Neill and Brame & Alexander, for the appellant.

1. The children, including Mrs. Cavett, took by the devise just what they would have taken as the heirs of Andrew Conner, and therefore were in by descent. McDaniel v. Allen, 64 Miss. 417; 1 Fearne on Remainders, 195, 274; 4 Kent's Com., 507; Ellis v. Page, 7 Cush., 161; Manbridge v. Plummer, 2 Myl. & K., 276; Beach on Wills, § 126; Davidson v. Koehler, 76 Ind 407; Powell on Devises, 285. The time of coming into possession, as on the death of Mrs. Conner, is immaterial. 2 Powell on Devises, 29, and cases cited.

2. The attempted substitution of the second clause of the paragraph of the will in question is void, because (1) it substituted those whom the law, as it then existed, substituted, and (2) because, if that is not so, it substitutes a limitation, void for remoteness, and in violation of our statute.

Substituting the "children" of any who should die before the period for division, did not alter the nature of the estate of the first devisees, for it attempted to substitute for certain persons who took, as a class, another class which was the same that the law would substitute. It is well settled that, if the substitutional devise fails because too remote, or because, as in this case, it does not change the course of descent, the estate of the prior takers is not affected. Even if the word issue be held to be synonymous with children, it is still true that, under the law as it existed at the time of the testator's death, the children, as a class, inherited the estate of a deceased parent, and, in default of issue, the estate passed to the brothers and sisters equally. Hence, this clause of the will engrafted on the estate of Mrs. Cavett no conditions that the law did not already affix. The course of descent was not altered.

In providing that if any of his children should die, leaving no issue, the testator clearly did not mean simply children, but descendants. 2 Jarman on Wills.

The attempted substitution of the "issue" of deceased "heir" of testator was void, because the limitation was not inconsistent with the nature of the descent. "If a devise be to heirs or heirs of the body, in the plural, in that case even words of limitation grafted on them not inconsistent with the course of descent, will not convert them into words of purchase." 2 Preston on Estates, 353, 369.

A devise over after dying without "heirs" is, in general, void, yet this rule is not without exception, for if a person to whom a limitation over is made is a relation capable of being the collateral heir, the first devisee takes an estate tail. 1 Fearne on Remainders, 466. When the remainder is limited to the heirs of the testator himself, if such heirs must also be the heirs of the first devisee, it means heirs of the body, and the first takes an estate tail. Ib., 467. The exception is when the limitation over is to one not in the line of inheritance. Ib., 468. It is manifest Conner wished the property to go to his lineal descendants. If the devise to his lawful heirs be operative at all, it is because the subsequent limitation to "issue" shows that he used the words "heirs" as synonymous with "heirs of his body." So construed, the effect would be to create an estate tail, and by statute it would be a fee simple. In construing limitations like these we must not look to what has in fact occurred since the death of the testator, but what was the law at that time and what might occur. Whether a devise violates the rule against perpetuities is to be determined by considering the provisions of the will at the date of the testator's death and looking to the law then in existence. If the ultimate fee in any possible contingency may not vest within the time limited by the rule against perpetuities, the devise is void, and what actually happened afterwards or what laws of descent were afterwards enacted cannot be considered. This being so, it is easy to see that the devise in this case subsequent to the life estate in the widow is void, because too remote. The limit under the then statute was a life or lives in being and to the heirs of the body of the remainderman, and, in default thereof, to the right heirs of the testator. We have seen that the devise is to the lawful heirs of the testator, and, by implication, to their "issue" i. e., lineal descendants. What interest, then, did a child of the testator take? The devise to "lawful heirs" being inoperative, each child took by inheritance, unless the subsequent limitations be given effect. As we have seen, this effect must either be that the gift to "lawful heirs" is cut down to an estate tail, and, for that reason, each child took a fee simple, or else the subsequent limitation to this issue shows that, by "lawful heirs" he meant heirs of his body, and, therefore, as these may continue for hundreds of years, the devise is void for remoteness.

Let us illustrate: There may be a devise to a succession of donees then living--that is, in this case, Mrs. Rosanna Conner. (The "heirs" or children cannot be counted as in the "succession of donees, " because they do not take successively after the death of Mrs. Conner. By successive donees is meant those who take in succession the same estate, each succeeding one taking nothing till the death of the former taker.) Mrs. Conner, the widow, then, was the only donee in being within the meaning of the statute. It is easy to conceive that on her death each of the children, save one, might die without issue, and the one die last, and leave children, or, perhaps only grandchildren. In that case, the fee would not, after the life in being, vest in the remainderman and the heirs of their bodies, but there would be, first, a life estate in being (the widow's), and then the interest a child would take in remainder would not be limited to the heirs of his body and in default to the testator's right heirs, but the remainder over to the brothers and sisters successively through eight of them, the last to take to himself and his issue. See Cannon v. Barry, 59 Miss. 289; Hudson v. Gray, 58 Ib., 882; Caldwell v. Willis, 57 Ib., 555.

Orr & Dinsmore, for the appellee.

The argument for the appellant ignores two fundamental propositions: (1) The intention of the testator in all cases must control, if consistent with law; (2) the essential difference between a definite failure of issue and an indefinite failure.

It cannot be questioned for one instant, after a common sense application of the meaning of the words used by the testator that he intended his estate to be enjoyed by his widow so long as she lived, and, at her death, that his living children and living grandchildren--i. e., his children and...