Harris v. McCann

• Decision Date: 30 May 1898
• Citation: 75 Miss. 805,23 So. 631
• Court: Mississippi Supreme Court
• Parties: ADELIA HARRIS ET AL. v. MARTHA J. MCCANN ET AL

23 So. 631

75 Miss. 805

ADELIA HARRIS ET AL. v. MARTHA J. MCCANN ET AL

Supreme Court of Mississippi

May 30, 1898

March 1898

FROM the chancery court of Yazoo county HON. H. C. CONN Chancellor.

The facts are fully stated in the briefs of counsel and in the opinion of the court.

Judgment affirmed.

Miller Smith & Hirsh, for appellants.

Notwithstanding the numerous and perplexing questions presented for adjudication in this court, from the organization of the state until the termination of the civil war, relating to the ownership and descent of property, with decisions celebrated for the logic, reason and legal erudition therein displayed nothing can be found in any case to warrant the conclusions reached in Pressgrove v. Comfort, 58 Miss. 644, and it is interesting to observe that the decision rendered in that case does not contain a single reference to or citation of any previous adjudication. On the contrary, a careful reading of the earlier cases warrants the assumption that since the enactment of section 24, p. 609, Hutchinson's code, June 13, 1822, the rule in Shelley's case, so far as it would affect devises and conveyances of realty of the character now under consideration, was not in force in this state, and language such as employed in the will of Henry L. Ratcliff would only vest a life estate in the first taker. Said section is as follows:

"What entails to be in fee discharged of conditions.--Every estate in lands or slaves which now is or shall hereafter be created an estate in fee tail, shall be an estate in fee simple, and the same shall be discharged of the conditions annexed thereto by the common law, restraining alienations before the donee shall have issue, so that the donee or person in whom the conditional fee is vested, or shall vest, shall have the same power over the said estates as if they were pure and absolute fees; Provided, That any person may make a conveyance or devise of lands to a succession of donees then living and the heir or heirs of the donor in fee simple."

This section, and particularly its proviso, has in several noted cases been subjected to close attention and study by the court. The very fact that this court, during the protracted period mentioned, has never been called upon to condemn and destroy a provision similar to the one at bar, seems to indicate that the members of the legal profession in those days, many of whom had achieved national renown, and who had no superiors in learning, ability and legal knowledge in this or any other country, practically agreed that a devise of real estate to a person for natural life, and at death to the heirs of his or her body, was unassailable.

Among the earlier expressions is the opinion of the eminent jurist, Judge Clayton, in Carroll v. Renich, 7 Smed. & M., 798. After quoting the rule in Shelley's case, in the language employed in Preston on Estates, he says: "We extracted the rule from Preston at length, that we might place it in contrast and connection with the simple and plain provisions of our statute. The proviso to the section abolishing entails says, 'Provided, that any person may make a conveyance or devise of lands to a succession of donees then living, and the heir or heirs of the body of the remainderman, and, in default thereof, to the right heirs of the donor in fee simple.' The boundaries of such limitations are here clearly defined." And he further says: "We have a strong belief that the statute of this state has changed the rule on this subject, and relieved it from the intricacy and embarrassment which have perplexed the common law and involved it in minute and subtle distinctions and refinements."

In the case then before the court, the instrument stipulated that certain slaves, the property of Rachel Renich, should be vested in a trustee, for the use of said Rachel during her natural life, and from the termination of that estate to the heirs of her body, and their heirs forever, and, in case she should die without such heirs, or, having heirs, they should die before they arrived at maturity, then to her brothers by her mother's side and their heirs forever. The case was decided according to the laws of Tennessee, but the remarks here quoted refer directly to the statutes of this state, and particularly to the proviso of section 24, which was incorporated in the opinion.

In the leading case of Powell v. Brandon, 24 Miss. 343, this proviso was again under consideration, and the court held: "The proviso to section 24 of the act of June 13, 1822, Hutch. code, p. 609, relates exclusively to conveyances or devises of real estate, and cannot, therefore, affect the application of the rule to a conveyance or devise of slaves."

In that case Gerard Brandon, by his last will, bequeathed all his real and personal estate of every kind whatever to third persons, as trustees, in trust that they would, immediately after his decease, take possession of all his property, and "deliver to his daughter, Margaret Smith, certain land and slaves named therein, in trust, to permit said Margaret to have possession, occupy, work, and enjoy said land and slaves to her sole and separate benefit, during her natural life. And in trust after the decease of said Margaret, to put and continue in possession of said land and slaves the lineal descendants of the said Margaret to the latest posterity, with the same privileges which the said Margaret shall have had during life, and on failure of lineal descendants, then in trust for the heirs generally of the testator, with the same privileges." The will contained bequests, in similar language, to all the children of the testator, and, among other bequests, is one in favor of Matthew Brandon, his son, in the following words: "Also further in trust, as soon after my death as the debts of my son Matthew are paid, and they may deem prudent and pleasureable, to deliver to said Matthew certain slaves and a tract of land named in the will, and put the said Matthew in possession, on the same conditions and with the same privileges and limitations as before mentioned in respect to said Margaret and her lineal descendants." Matthew was placed in possession of said property, and occupied the same during his life, and died leaving no lineal descendants. Powell, a creditor of Matthew Brandon, contended that the will conveyed Brandon an estate in fee in the slaves, and therefore the same was subject to the payment of his debts. For Brandon's representatives it was urged that he only possessed an estate for life in the slaves, and as he died leaving no lineal descendants, they became the property, under the will, of the heirs of the testator. It was insisted, however, that the rule in Shelley's case had been repealed by the statute, and the court, in response to this argument, said: "The counsel for the appellee insist that this repeal has taken place, and we have been referred to sections 24 and 26 of the act of June 13, 1822 [Hutch. code, pp. 609, 610], as containing the evidence thereof. By reference to section 24 it will be found, we think, to have little, if any, bearing upon the question. The object of that section was to abolish entails in both real estate and slaves, whether conveyed by deed or devise, and the proviso contained in the section has exclusive relation to the devise or conveyance of real estate, and cannot, therefore, have any influence upon the construction which must be placed upon a devise or conveyance of slaves." The inference, therefore, is strong, that if the title to the real estate had been involved, the court would have reached a different conclusion, and it is pertinent to note that, although the will vested in Matthew Brandon not only slaves but a tract of land, no case was subsequently brought, of which we have information, questioning the validity of the will, so far as real estate is concerned. It therefore seems reasonable to assume that the distinguished counsel, in that and in subsequent cases presenting like questions, regarded such a devise of real estate as impregnable to attack.

Over three and a half years later, this court, in Hampton v Rather, 30 Miss. 193, was called upon to construe a deed whereby the grantor conveyed to his "daughter and the heirs of her body forever" certain female slaves and their natural increase. The court said: "It is insisted by counsel that the intention of grantor to invest in his daughter an estate during her natural life is perfectly evident from the terms of the instrument, and hence it is contended that the limitations over by the use of the words 'heirs of her body' does not bring the case within the operation of the rule in Shelley's case, as that rule has been modified by the legislature and expounded and applied by the courts of this state. The court again carefully considered the scope and effect of this rule, and reviewed the preceding cases in this court upon the same subject, and announced, "In our opinion, therefore, the rule in Shelley's case, so far at least as personal property is concerned, has not been abolished." It seems a legitimate deduction therefrom that the court was of the opinion that the rule in Shelley's case did not apply to realty. This view is strengthened, if not absolutely justified, by the concluding paragraphs of the decision. In the justly famous case of Jordon v. Roach, 32 Miss. 481, which dealt with a will conveying both real and personal property, the limitations imposed upon the rule in Shelley's case by our statute were again defined. The court said: "If we stop at the proviso [Hutch. code, § 24, p. 609], we shall find that the power to control the disposition of his property, and to restrict the right of alienation in regard to it, is bounded by the time in which the owner shall cease to...