Halsey v. Gee

• Decision Date: 21 October 1901
• Citation: 30 So. 604,79 Miss. 193
• Court: Mississippi Supreme Court
• Parties: JOHN B. HALSEY ET AL. v. JAMES J. GEE ET AL

30 So. 604

79 Miss. 193

JOHN B. HALSEY ET AL. v. JAMES J. GEE ET AL

Supreme Court of Mississippi

October 21, 1901

FROM the chancery court of, first district, Carroll county. HON A. MC. KIMBROUGH, Chancellor.

Halsey and others, appellants, were complainants in the court below Gee and others, appellees, were defendants there. The object of the suit was to confirm the complainant's title to the lands in controversy, known as the "Big Sand Place," and to vacate and annul the deeds under which defendants claimed the plantation as clouds upon complainant's title. The facts were as follows: The late Greenwood Leflore (in whose honor the city of Greenwood and the county of Leflore were named) died in 1865, leaving a last will and testament, the fifth item of which, the only part material in this controversy, was in these words:

"I give and devise to my two grandsons, Greenwood L. Halsey and John B. Halsey, the tract of land known as the 'Big Sand Place,' and in the event that either of my said grandsons should die without issue, then it is my will, and I hereby direct, that the land herein devised to him shall go to the surviving grandson, and in the event that both of them die without issue surviving, then it is my will that the land herein devised and bequeathed to them, together with all the bequests hereinafter made to them, revert to my son, John and my daughter, Rebecca Harris, equally to be divided between them."

John B. Halsey, devisee, died in July 1900, leaving four children, now living, who are the appellants in this cause. Greenwood L. Halsey, devisee, died in October, 1900, without children, or descendants of children.

John B. Halsey and Greenwood L. Halsey, the first donees of the will, conveyed the land devised to them by the fifth clause of the will, the "Big Sand Place," by way of mortgage, to one Roach, as a trustee, to secure a debt to James J. Gee, who, said Gee and Roach, are the appellees in this cause.

S. R. Coleman, Frank Johnston and McWillie & Thompson, for appellant.

The precise question for consideration, and the one upon which the case exclusively depends, is in respect to the vesting of the estates in remainder in the children of John B. Halsey. Assuming that this is a case of contingent cross remainders it is impossible that the two first donees took estates in fee simple.

"Tenant in fee simple (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs forever generally, absolutely, and simply. This is property in the highest degree, and the owner thereof hath absolutum et directum dominum, and is, therefore, said to be seized thereof absolutely in dominico suo in his own demesne." 3 Blackstone's Com., 104; 1 Bouvier's Law Dic., 578; 2 Blackstone's Com., 164.

This being a case of contingent cross remainders, it unquestionably follows that the first donee did not take estates in fee simple under the will.

We now invite the attention of the court to the inquiry in respect to the direct remainder as well as the cross remainder that went to the children of John B. Halsey upon his death. The estate of Greenwood L. Halsey unquestionably terminated at his death without issue. And the death of John B. Halsey with issue living undoubtedly was the contingency which defeated the ulterior limitation over to John D. Leflore and Rebecca Harris. The death of John B. Halsey, with issue surviving at his death, constituted the contingency which defeated the alternative estate limited over, and at the same time vested these estates in remainder in the children of John B. Halsey at his death.

The devise is one-half to John B. Halsey, with remainder over to Greenwood L. Halsey, in the event that John B. Halsey died without issue surviving him; and the devise was also one-half to Greenwood L. Halsey, with remainder over to John B. Halsey, if Greenwood L. Halsey died without issue surviving him.

It is the common case of contingent cross remainders and implied direct remainders, and it is to be most carefully observed that it is not the case of the estate, as known to the ancient common law before the statute de donis constitutionalibus, of a determinable or conditional fee which became a fee simple upon the birth of issue of the first taker.

John B. Halsey had a contingent cross remainder in the half devised to Greenwood L. Halsey. The right to this contingent estate in remainder was a vested one in John B. Halsey, subject to the ulterior limitation. The right to the estate was vested, although the estate was contingent. Greenwood L. Halsey's entire estate and interest in the land terminated at his death, and this half went, by the cross remainder, to the appellants.

It is evident that, if John B. Halsey had died without issue living at the time of his death, his estate would have terminated at his death, and his half would have gone to Greenwood L. Halsey, surviving, for life, and subject to the ulterior limitation. In no possible event could the estate of John B. Halsey extend beyond his life. If he died without issue, it went to Greenwood L. Halsey, if he survived; or to his issue in fee simple, if he died leaving issue. If both donees died without issue, then the estates of the two first donees terminated, and the ulterior or substituted estate in fee simple took effect. If either died with issue living at the time of his death, then such issue took the share of their father, by implication, under the will.

The words "dying without issue," or "without heirs of the body," or like expressions, according to the elementary rule, create an estate, by implication, in such issues. 2 Preston on Estates, 504; Fearne on Contingent Remainders, 477; 2 Jarman on Wills, 329.

It was said by the court, in the leading case of Nottingham v. Jennings, 1 Lord Raymond, 568, that the use of these words shows the intention of the testator to create an estate in the issue of the first donee. This rule was also announced in Holmes v. Manynell, 2 Showers, 136, another leading English case, involving a devise to two donees with cross remainders over.

Applying this rule to the present case, a correct analysis of the will is as follows:

1. John Halsey took a direct devise of one-half of the property with remainder over to his issue by implication, and in default of issue, then to Greenwood Halsey, surviving subject to the alternate devise.

2. Greenwood Halsey took also a direct devise of one-half, with remainder over to his issue, by implication, and in default of issue, then to John Halsey surviving.

3. John Halsey had a contingent cross remainder on Greenwood Halsey's death without issue.

4. John Halsey took this cross remainder subject to his dying without issue, in which event this half of the property went to the ulterior devisees. But if John Halsey died leaving issue, this event defeated the ulterior, or alternative, limitation over, and such issue took this half of the property in remainder by implication.

5. Greenwood L. Halsey had a contingent cross remainder in John Halsey's half of the property upon the death of the latter without issue, subject to the ulterior devise.

6. But Greenwood L. Halsey was to take John B. Halsey's half in remainder, subject to the event of his own death without issue, in which event this half was to go to the ulterior, or substituted, devisees. But, if Greenwood L. Halsey died, leaving issue,...