Hays v. Cole, 39259

• Decision Date: 14 June 1954
• Docket Number: No. 39259,39259
• Citation: 221 Miss. 459,73 So.2d 258
• Parties: HAYS et al. v. COLE et al.
• Court: Mississippi Supreme Court

Page 258

73 So.2d 258

221 Miss. 459

HAYS et al. v. COLE et al.

No. 39259.

Supreme Court of Mississippi.

June 14, 1954.

Stone, James & Sons, Oxford, J. B. Boyles, Batesville, for appellants.

James McClure, Herbert M. Fant, Sardis, for appellees.

McGEHEE, Chief Justice.

This is a suit brought by the appellees, Floyd Cole and others, as children and grandchildren of John A. Cole, deceased, to cancel as clouds upon their title to the SW 1/4 of Section 35, Township 9, Range 8 West in Panola County, Mississippi, the adverse claim of title asserted by the appellants, Mrs. Helen T. Hays and others, the source of which originated in the foreclosure of a deed of trust given by Willie Cole on February 27, 1904, and under which the land was sold to the Bank of Batesville on February 6, 1905. There was no plea of adverse possession by the defendants, and there was no proof offered to show that they had been in possession of the land for a sufficient length of time to acquire title by reason thereof, since the claim of title by the complainants did not originate until Willie Cole 'died without issue' on the 6th day of December 1951.

There was filed as an exhibit to the bill of complaint the last will and testament of James Monroe Cole, and which was executed on August 5, 1891. The testator died on October 3, 1891. The will which was on the same day duly admitted to probate and placed of record, had willed and bequeathed 'to my old and faithful servant, Dicy Cole, for and during her natural life' an 80-acre tract of testator's land. The instrument then contained a provision to the effect that: 'Whereas, my life has been a lonely one and owing to my feeble physical condition for some time past, I have felt the necessity of constant attention and association, and whereas, John A. Cole * * * and Willie Cole * * * have been raised by me and have ever been obedient and faithful to me, it is my special will and desire that they shall be well provided for out of my estate, and whereas I have already given considerable property to John A. Cole, I now will and bequeath to the said Willie Cole the following real estate situated in the 2nd Court Dist. County of Panola and State of Mississippi, to-wit: the Southwest quarter of Section Thirty-five Township Nine, Range Eight, and, upon the death of Dicy Cole, also the South half of the Northwest quarter of said Section, Township and Range.'

The 4th Paragraph of the will reads as follows: 'I will and bequeath all other property of every kind and description which I may own at the time of my death, and not specifically disposed of, to John A. Cole and Willie Cole in equal portions.'

The 5th Paragraph of the will reads as follows: 'I direct that in case of the death of Willie Cole without issue that all property which he may have received from my estate shall go to John A. Cole in fee simple.'

Neither John A. Cole nor Willie Cole were related by blood to the testator. The former was then an adult and the latter a minor. John A. Cole died during the year 1905, whereas Willie Cole did not die until December 6, 1951. John A. Cole left surviving him his wife and three children. Thereafter his wife and one of his children died, leaving two children and the children of a deceased child as the sole heirs-at-law of John A. Cole, deceased, at the time of the death of Willie Cole on December 6, 1951. The record is silent as to whether Willie Cole left a wife surviving him, but it is conceded that he left no children.

In the meantime the appellants, Helen T. Hays and others, had acquired such title to the land as may have passed to the Bank of Batesville on February 6, 1905, by the foreclosure sale under the deed of trust given on the land by Willie Cole on February 27, 1904.

It is contended by the complainants, children and grandchildren of John A. Cole, as aforesaid, that upon the death of the testator James Monroe Cole on October 3, 1891, there became vested in John A. Cole such an interest in the land received by Willie Cole from the estate of the testator as to entitle him to have received under the will the remainder in fee at such time as Willie should die without issue, and that this right descended to the heirs-at-law of John A. Cole when he died during the year 1905, some forty-six years prior to the death of Willie Cole, who was admittedly without issue. In other words, they contend that John A. Cole died seized and possessed of a vested interest in the contingent remainder created by the will as to the lands devised to Willie Cole.

On the other hand it is contended by the defendants, who claim by mesne conveyances through the foreclosure sale of the deed of trust given by Willie Cole on February 27, 1904, that upon the death of John A. Cole some time during the year 1905, the contingent remainder lapsed for want of a taker and that thereupon Willie Cole became vested with an indefeasible fee simple title, whereas he had been vested with a defeasible fee up to the date of the death of John A. Cole. This contention overlooks the fact that it was the contingency of the death of Willie Cole without issue whenever such death should occur that rendered his title to the land defeasible under the terms of the will, and not the contingency of whether John A. Cole should predecease or survive him. Moreover, it is generally true in case of a lapsed devise that the land would descend to the heirs-at-law of the testator as intestate property.

Section 837, Code of 1942, provides, among other things, that: 'Every contingent limitation in any conveyance or will made to depend upon the dying of any person without * * * issue * * * shall be held and interpreted as a limitation, to take effect when such person shall die not having such * * * issue * * * living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared on the face of the instrument creating it.'

We are of the opinion that the primary purpose of the above quoted statute was to make as the test the question of whether the person dying without issue had left issues surviving him at the time of his death, or issue born to him within ten months thereafter, instead of whether or not the person referred to may have at one time subsequent to the execution of a will in his favor have had an issue which had predeceased such a beneficiary. For instance, it was suggested by one of the attorneys for the appellants during the trial of the case that Willie Cole at one time had a child who predeceased him, but no proof was offered to sustain such fact and we now construe this statute to mean that the limitation therein mentioned would take effect to defeat the defeasible fee of Willie Cole in the land if he died not having issue 'living at the time of his death, or born to him within ten months thereafter', and that therefore, the fact, if such were the fact, that he at one time had a child who predeceased him would be immaterial and that the estate bequeathed to him under the will was terminated when he died without issue 'living at the time of his death, or born to him within ten months thereafter.' In the case of Balfour v. Wells, 183 Miss. 707, 183 So. 392, 184 So. 313, the Court in its opinion did not deal with the effect of the statute now under consideration.

In 31 C.J.S., Estates, § 88c., p. 100, it is said: 'It has been broadly held that a contingent remainder, no matter on what the contingency depends, is subject to conveyance by deed, or to transfer, assignment, or, when clothed with its usual attributes, alienation; but under other authority a contingent remainder cannot be the subject of sale, and cannot be transferred or conveyed by deed or common-law conveyance; and it has been said that alienability is not a necessary attribute thereof. More precisely, a contingent remainder is alienable when the remainderman is ascertained and the uncertainty which makes it contingent is in the event on which it is limited to take effect, because in such case the possibility is coupled with an interest, but the interest transferred is subject to the same contingencies in the hands of the transferee as it would have been had it not been...