Haring v. Flowers

• Decision Date: 10 February 1908
• Citation: 45 So. 571,91 Miss. 242
• Court: Mississippi Supreme Court
• Parties: EDWIN W. HARING ET AL. v. OMERA L. FLOWERS

45 So. 571

91 Miss. 242

EDWIN W. HARING ET AL. v. OMERA L. FLOWERS

Supreme Court of Mississippi

February 10, 1908

October 1907

FROM the chancery court of Claiborne county, HON. WILLIAM P. S VENTRESS, Chancellor.

Haring and others, appellant, were complainants in the court below Flowers, the appellee, was defendant there. From a decree denying them relief complainants appealed to the supreme court.

The purpose of the suit was to set aside a conveyance made by Eliza J. Haring under which the appellee claimed the land in controversy. The land formerly belonged to Amelia A. McLain who, dying in October, 1878, the Code of 1871 being in effect, devised the land to Eliza J. Haring, but whether for life or in fee was the question in the case. The will of Mrs McLain is set forth in full in the opinion of the court. In 1892 Eliza J. Haring by deed conveyed the land to one Corbin who, in 1897, conveyed it to Flowers. Eliza J. Haring died intestate in 1903, and the complainants then begun this suit. They are heirs at law, children and grandchildren, of Mrs. Haring, but claim that she, their mother and grandmother, was vested only with a life estate in the land, under the will of Mrs. McLain, and that at her death the land became theirs under Mrs. McLain's will. The appellee's answer denied only the propositions of law propounded in the bill.

Affirmed.

C. A. French, for appellants.

Mrs. McLain died in October, 1878, and accordingly the Code 1871, ch. 52, controls in this case, under which a person may by express words limit an estate to less than a fee simple. This is what Mrs. McLain's will sought to do by the words, "at her death her heirs are to have it," the pronoun "her" referring to Eliza J. Haring. The intent of the testator is the pole star to guide the court in construing a will. Johnson v. Delome Land, etc., Co., 77 Miss. 15.

Under Code 1871, § 2286, Mrs. McLain could devise her land to her sister, Eliza J. Haring, for life, with remainder over to her children then living; and this is what she sought to do. Middlesex Banking Co. v. Field, 84 Miss. 646; Acree v. Dabney, 32 So. 127; 13 Cyc., 604; 11 Am. & Eng. Ency. Law (2 ed.), 372, 380.

Learned counsel for appellee seem to have overlooked the fact that the will was made, and the death of the testatrix occurred, before the adoption of the Code of 1880, and therefore the provisions of the Codes of 1880, and 1892, and 1906 cannot apply in this case, unless brought forward from the Code of 1871.

J. McC. Martin, for appellee.

Did the will of Mrs. McLain create a life estate in Eliza J. Haring with remainder over on her death, to the appellants as her heirs? Kent in his Commentaries, vol. 4, § 5, p. 5, says that "a fee simple is a pure inheritance, clear of any qualification or condition, and it gives a right of succession to all of the heirs generally." In Sharswood's Blackstone, § 106, p. 104, it is said that "a tenant in fee simple, or in fee, is he who has lands, tenements or hereditaments to hold to him and his heirs forever, generally, absolutely and simply, without mentioning what heirs, but referring that to his own pleasure or to the disposition of the law." In 4 Kent's Commentaries (18 ed.), 198, it is stated that "a remainder is a remnant of an estate in land, depending upon a particular prior estate, created at the same time, and by the same instrument, and limited to arise immediately on the determination of that estate and not in abridgment of it." And on p. 234 of the same work, it is further stated that "there must be a particular estate to precede a remainder, for it necessarily implies that a part of the estate has already been carved out of it and vested in immediate possession in some other person." By Code 1880, § 1189; Code 1892, § 2435, and Code 1906, § 2764, it is provided that every estate in lands granted, conveyed or devised, although the words deemed necessary by the common law to transfer an estate of inheritance be not added, shall be deemed a fee simple if a less estate be not limited by express words, or unless it clearly appear from the conveyance, or will, that a less estate was intended to be conveyed thereby.

In the case of Johnson v. DeLome Land, etc., Co., 77 Miss 15; 26 So. 360, this court said that "the intention of the testator is the polar star for inquiry in the interpretation of his will, but such intention must be collected from the words which he has employed. The question is not, what he wished, but...