Redmond v. Redmond

• Decision Date: 14 April 1913
• Docket Number: 15,946
• Citation: 61 So. 552,104 Miss. 512
• Court: Mississippi Supreme Court
• Parties: ROBERT REDMOND ET AL., v. DENNIS REDMOND ET AL

61 So. 552

104 Miss. 512

ROBERT REDMOND ET AL., v. DENNIS REDMOND ET AL

No. 15,946

Supreme Court of Mississippi

April 14, 1913

APPEAL from the chancery court of Holmes county, HON. JAMES F MCCOOL, Chancellor.

Bill between Dennis Redmond and others and Robert Redmond and others for the construction of the will of John S. Redmond deceased. From a decree finding the fourth clause of the will invalid and directing a distribution of the residue of the estate among the testator's heirs, Dennis Redmond and others appeal.

The facts are fully stated in the opinion of the court.

Reversed.

Boothe & Pepper, for appellants.

Our contention is that the devise is not void as violative of the rule against perpetuities; it is not contrary to the proviso of section 2765, Code 1906; and that the property is not devised as contemplated by said section in succession to more than two living donees; and that said devise is not contrary to the statute and public policy and that it is not void because thereof. We contend that it was the purpose of the testator to create a joint tenancy in his seven children for life with the right of survivorship, and that upon the death of the last surviving child the grandchildren then living should immediately be seized of a fee simple estate in said property as by an executory devise. And we contend that this express intention is not contrary to law, but will be sustained by the court where "it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy with the right of survivorship."

If the testator had devised all the property to Robert for life, and at his death to Jerry for life, and at his death to Squire for life, and at his death to Jason for life, and at his death to Martha Jane for life, and at her death to Frances for life, and at her death to Elizabeth for life, and to the heirs of her body and in default thereof to the right heirs of the donor in fee simple, the devise would have been contrary to section 2765, Code 1906, and void as a devise to the ulterior limitees, but we do not believe that this court would even then hold that Redmond died intestate.

We are aware of the fact that the law regards estates in joint tenancy with disfavor, but such estates are recognized by the laws of our state when created by express terms. See section 2770, Code 1906, which reads as follows: "All conveyances and devises of land to two or more persons, or husband and wife, shall be construed to create estates in common and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy or entirety with the right of survivorship."

Upon the death of John I. Redmond his four sons and three daughters became joint tenants of the property devised to them, with a right of survivorship vested in each one of them, and not to them as a succession of donees. This express intention of the testator is as plain as language can make it; and is given in item four of the will and reiterated in the codicil.

The limitations in the will to the seven children as joint tenants and to the survivor of them, and at the death of the last surviving child to the "grandchildren living" in equal parts, do not violate the rule against perpetuities.

If we are mistaken as to this the children, the first takers obtain an absolute estate in fee simple and Redmond did not die intestate. Caldwell v. Willis, 57 Miss. 555. In this case, GEORGE, C. J., in delivering the opinion of the court on page 569 says of the rule against perpetuities, that it "requires the fee to vest within a life or lives in being at the testator's death, and twenty-one years after the expiration of said life, or twenty-one years after the last surviving life, if more than one be named in the will."

Tested by this rule the devise complained of in Redmond's will does not violate the rule. The devise is to the seven children naming them, and the survivor and, at his or her death, to the grandchildren living.

The fee must necessarily vest within a life or lives in being if any of the children be living upon the death of the testator, and immediately upon the death of the last surviving child, in the grandchildren living; the law might add a period of ten months in order to avoid doubt and uncertainty and still the devise would be in harmony with the rule.

In the case cited, the court also held that the limitations in the will of Augustine Willis, being therein passed upon, was void, because it violates the rule against perpetuities, and that the rule is that the first taker gets as absolute estate. The clause in the will declares void as against perpetuities, gave, "To Daniel Willis during his life, and at his death to his child or children then living and the descendants of such child or children and their heirs forever." And the court held that Daniel Willis took an absolute estate.

The object of the legislature in framing section 1190, Code 1880, 2436, Code of 1892, and 2765, Code of 1906, is made clear in Banking Co. v. Field, 84 Miss. 666.

WHITFIELD, C. J., delivering the opinion of the court says on page 660 in speaking of the erroneous construction of the statute dedonis by the English courts: "English courts construe according to their customs; American courts should favor executory devises to carry out the intent." And again on page 663, "that the donors took by purchase and not by descent, as limitees under the deed of will, and not as heirs."

In the concurring opinion of CALHOUN, J., on page 667, it is said: "No doubt the lawmakers had in mind executory devises, and, having abolished fees tail, authorized the creation of the estate described in the statute to which this limitation must conform. Executory devises no doubt furnished the idea of lives in being, but succession of donees had no place in the law of executory devises. It seems plain that it could not have been the purpose to interfere with executory devises, but that, having effectually destroyed fees tail, it was intended to authorize as a substitute therefor, the succession of interests authorized by the proviso, so as to enable one to give an estate to his wife and children or others in succession, with remainder to the heirs of the body of the last taker."

And on page 668 Judge CALHOUN says: "Should the idea prevail that no future limitation of lands can be made, except as prescribed by the very words of the proviso (meaning 2765, Code of 1906), while personalty is subject to the former law of executory devises? In Cannon v. Barry, 59 Miss. 289, it was announced that the statute was not intended to prescribe a formula to be adhered to in future limitation. The estate contemplated by the proviso is so widely different from executory devises that they could not have been had in view in enacting it except as furnishing the idea of lives in being. The statute prohibited fees tail, and authorized a statutory substitute for them, and left executory devises wholly unaffected."

TRULY'S, Judge concurring opinion on the facts is in harmony with the foregoing.

The instant case as already shown does not present to the court a succession of donees; all of the seven children take at once a life estate with full right of survivorship as joint tenants, and on the death of the last taker the absolute fee by executory devise vests in the grandchildren living.

If we are mistaken in classing the devise of Redmond to his grandchildren as expressed in the will as an executory devise, we surely are right in our contention that John I. Redmond by his will made his children joint tenants of the property devised to them, with right of survivorship, and that such joint tenancy when thus manifestly expressed in a written instrument is upheld by our law. Code 1906, section 2770; McAllister v. Plant, 54 Miss. 106; Day v. Davis, 64 Miss. 353.

The children of Redmond hold by one joint title and in one right. They have unity of interest, unity of title, unity of time, and unity of succession. 33 Cyc. 484; 47 Am. St. Rep. 253; 48 Miss. 311.

Not until the last life tenant dies will the ulterior limitation take effect and the fee pass to the living grandchildren of the testator.

In Thomas v. Thomas, 97 Miss. 697, it was held that the statute (section 2765, Code 1906) prohibited estates tail, and authorized a statutory substitute therefor, but left executory devises unaffected, and the opinion of Judge CALHOUN in Banking Co. v. Field, 84 Miss. 646, 37 So. 139, is cited approvingly, and it was declared that there may be a limitation by executory devise of realty as well as personalty, and that the common law against perpetuities is the same, whether the estate limited consists of realty or personalty. In the instant case the estate consists of both realty and personalty; and we have already pointed out that the common law rule against perpetuities is not violated.

In conclusion we insist that the will of John I. Redmond ought to be sustained as expressly creating a joint tenancy in his seven children, living when the will was executed, for life with express right of survivorship, and after death of his last surviving son or daughter to the grandchildren of the testator then living; the grandchildren then living being the ulterior limitees to whom the fee will pass. The devise does not violate the rule against perpetuities, because the fee will vest immediately upon the death of the last life tenant. It does not violate section 2765, Code 1906, in that it is not a devise, contemplated by that statute. That statute is against the entailment of property except for the length of time given by its terms. The will of John I. Redmond does not entail his property or attempt...