Ricks v. Merchants Nat. Bank & Trust Co. of Vicksburg
| Decision Date | 12 May 1941 |
| Docket Number | 34566. |
| Citation | 2 So.2d 344,191 Miss. 323 |
| Court | Mississippi Supreme Court |
| Parties | RICKS et al. v. MERCHANTS NAT. BANK & TRUST CO. OF VICKSBURG et al. |
R H. & J. H. Thompson, of Jackson, for appellants.
Dent Robinson & Ward, of Vicksburg, for appellees.
The question involved in this suit is whether a possibility of reverter owned at the time of her death by the testatrix Mrs. Fannie Willis Johnson, in certain real estate in the City of Vicksburg, was devised to a residuary devisee therein named, subject to any indebtedness of the estate and the payment of the specific legacies provided for, or descended according to the laws of descent and distribution.
On June 23, 1926, the testatrix executed a deed in favor of the Mayor and Aldermen of the City of Vicksburg, conveying the property here involved, and containing the following provision "The land aforesaid is hereby conveyed unto the said Mayor and Aldermen of the City of Vicksburg as aforesaid for use solely as a site for a public school for white children, and with the understanding, and subject to the condition, that if the said Mayor and Aldermen of the City of Vicksburg shall not, within the period of ten years next following the date of this conveyance, erect on said land for use as a public school for white children as aforesaid, a building to cost not less than the sum of Fifty Thousand Dollars ($50,000.00), the title to said land shall, ipso facto, on the expiration of said period, revert to and become revested in me."
The Mayor and Aldermen of the City did not construct a school of any kind on this property within ten years following the date of the conveyance. Mrs. Johnson, the grantor, died on September 2, 1931, which was of course prior to the expiration of the ten year period prescribed in the deed, and at her death left a will devising all her property, real and personal, which should remain after payment of the special legacies and the debts of the estate, to a residuary devisee, and in which will the appellees were named as executors.
On September 8, 1936, the Mayor and Aldermen undertook to convey the real estate in question to the executors; and thereafter these executors undertook to convey the same to the appellants, who are the next of kin and heirs at law of the testatrix. For obvious reasons these two deeds were ineffective to convey the title to the heirs at law, since their rights in the property, if any, would be by inheritance. The Mayor and Aldermen had no title to convey to the executors, after the expiration of the ten year period during which there had been a failure to erect the school building required by the terms of the deed to the City of Vicksburg from Mrs. Johnson, and hence the executors acquired no right under the deed to them from the Mayor and Aldermen which they could convey to the heirs at law, their only right or interest in the property being to administer the estate according to law and in order to carry out the will of the testatrix.
This brings us to the main issue here in controversy, that is to say, whether the appellants, as the heirs at law of Mrs. Johnson, inherited from her at the time of her death in September, 1931, the possibility of reverter which was created in the property under the terms of the deed executed by her to the Mayor and Aldermen of the city in 1926, or whether the same passed at her death under the will in favor of the residuary devisee.
It is well settled that under the common law a mere possibility of reverter is not an estate, present or future, but a possibility of having an estate; that possibilities of reverter were inalienable at common law by deed or will, since such a right arises out of a grant so limited that it may last forever or may terminate on a contingency, and is a mere possibility of having the fee again, which exists in a grantor after the grant of a determinable or qualified fee. Such a right, however, was at common law descendible. 23 R.C.L. 1104; 21 C.J. 1017; Copenhaver v. Pendleton, 155 Va. 463, 155 S.E. 802, 77 A.L.R. 324; Clapp v. Wilder, 176 Mass. 332, 57 N.E. 692, 50 L.R.A. 120. It was held in the Copenhaver case that the possibility of reverter while not devisable at common law may be made so by statutes providing that any interest in or claim to real estate may be disposed of by deed or will. See also 28 R.C.L. 287; Young v. Young, 89 Va. 675, 17 S.E. 470, 23 L.R.A. 642.
By Article 1, Chapter XXXVI, Code of 1857, it is provided that "any...
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...either by deed or will. Hamilton v. City of Jackson, 157 Miss. 284, 127 So. 302 (1930); Ricks v. Merchants National Bank and Trust Company of Vicksburg, 191 Miss. 323, 2 So.2d 344 (1941). They change the rule of the common law and remove all restraints upon the inter vivos and testamentary ......
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