Nicholson v. Fields

• Decision Date: 29 May 1916
• Docket Number: 17869
• Citation: 71 So. 900,111 Miss. 638
• Court: Mississippi Supreme Court
• Parties: NICHOLSON ET AL. v. FIELDS ET AL

71 So. 900

111 Miss. 638

NICHOLSON ET AL. v. FIELDS ET AL

No. 17869

Supreme Court of Mississippi

May 29, 1916

APPEAL from the chancery court of Kemper county, HON. J. F. MCCOOL Chancellor.

Bill of complaint by C. S. Field and others against T. H. Nicholson and others. From a decree for complainants, defendants appeal.

Section 2765 of the Code of 1906, referred to in the opinion, is as follows:

Estates in fee tail are prohibited; and every estate which, but for this statute, would be an estate in fee tail, shall be an estate in fee simple; but any person may make a conveyance or a devise of lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainderman, and, in default thereof, to the . . . heirs of the donor, in fee simple.

Affirmed.

OPINION

COOK, P. J.

Appellees exhibited their bill of complaint in the chancery court of Kemper county for the purpose of having the court to construe the last will and testament of James Milton Nicholson, Sr. deceased, and to have the court remove the cloud on complainant's title to certain described lands. A demurrer to the bill was filed by appellants, which demurrer was overruled, and appellants filed their answer making same a cross-bill. On a final hearing the following decree was entered in the cause, viz:

"This day came on to be heard before James F. McCool, chancellor of the sixth chancery district of said state, in vacation, at Kosciusko, Miss., the above-entitled cause under an order made at the December term, 1913, of said chancery court sitting at De Kalb, Miss., taking the said cause under advisement, decree to be rendered in vacation; and, the said cause having been submitted on bill of complaint, exhibits thereto, answer and cross-bill of defendant, answer of complainants, cross-bill, and written agreement, and also on brief of counsel, and the chancellor having considered the same and being satisfied that complainants are entitled to the relief prayed for in their bill of complaint, doth order and decree that the allegations of the said bill of complaint be and they are hereby sustained, and that complainants are hereby declared to be the owners in fee simple of the lands in controversy, and the clouds to the complainants' title, as asserted by the said defendants, be and are hereby removed. The said lands being described as follows, to wit [describing the land].

"And the chancellor, being called on by the pleading in this cause to construe the will of James Milton Nicholson, deceased, a copy of which said will is attached as an exhibit to the bill of complaint, which is the main question involved herein holds and does decree that the said testator, James Milton Nicholson, deceased, in attempting to control the alienation of the lands mentioned in said last will and testament, both the lands devised to his nephews Joseph Allen Nicholson, James Lauren Nicholson, and John Quitman Nicholson, and also the lands devised to his grandsons, the defendants in this cause, beyond the period of time and number of donees not permitted by law, violated the rule against perpetuities under the laws of the state of Mississippi, and the chancellor holds and decrees that the lands devised to his said nephews, they being the first takers thereunder, which said lands are described in said last will and testament, a part of which as above described being in controversy in this suit, became the property in fee simple of said nephews, and that complainants, by virtue of this conveyance executed to them by said nephews, to wit, Joseph Allen Nicholson, James Lauren Nicholson, and John Quitman Nicholson, which conveyance is recorded in Deed Book Y, at page 6 of the records of deeds of Kemper county, are now vested with the fee-simple title to said lands.

"And the chancellor, being also requested to construe the whole will, further holds and decrees that the said James Milton Nicholson, deceased, in attempting to control the alienation of the lands mentioned in said will beyond...