Schlater v. Lee

• Decision Date: 27 May 1918
• Docket Number: 20151
• Citation: 117 Miss. 701,78 So. 700
• Court: Mississippi Supreme Court
• Parties: SCHLATER ET AL. v. LEE ET AL

78 So. 700

117 Miss. 701

SCHLATER ET AL. v. LEE ET AL

No. 20151

Supreme Court of Mississippi

May 27, 1918

Division A

APPEAL from the chancery court of Lowndes county, HON. ALBERT Y WOODWARD, Chancellor.

Suit by Randle Blewett Schlater, administrator Com Testamento Annexo of Thomas B. Blewett, Sr., and others against Blewett Lee and others. From a decree sustaining demurrers to the bill complainants appeal.

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

Decree affirmed.

Granade & Granade, for appellants.

Sturdivant, Owen & Garnett and J. Boone, for appellee.

OPINION

HOLDEN, J.

Thomas G. Blewett, Sr., died in Lowndes county in 1871, leaving a will in which certain real estate in the city of Columbus and Lowndes county was devised.

The controversy here arises out of the construction of items 1 and 5 of the will, which we here set out:

"Item 1. I give, devise, and bequeath to my son, Thomas Blewett (he sometimes writes his name Thos. G. Blewett, Jr.) the west half of the southwest quarter of Sec. thirty-one in township seventeen, range eighteen in Lowndes county, Mississippi, also one eighty, number not recollected (which may be ascertained by reference to the maps now [at] Jackson) which I understand he has under fence, together with any all notes and indebtedness that is now due and owing to me from said son Thomas, hereby acquitting and discharging him from the same. This devise to my said son Thomas to be in full of all demands on his part against my estate and to be all he is to receive therefrom, he not to account for the property heretofore given him, but the foregoing in addition thereto."

Item 5. I give, devise and bequeath to my daughter Mary Wooldridge and her heirs during her natural life my house and lot known in the plan of Columbus, Mississippi, as lot seventeen, and all the buildings thereon also all the land situated up and down the Luxapalila river above and below my old bridge, supposed three hundred and seventy acres more or less. At her death to be sold and the proceeds to be divided between my heirs share and share about; that is the above named lot and land. Also the furniture in the said house, she, is to have at her own disposal. I give in fee simple my calash and harness and two horse wagon and harness to her. I have already given her her plantation by deed situated in Sunflower county, Mississippi. I also give her in her own right my stock in Life and General Insurance Company in this city of Columbus, being nine thousand dollars. I also give her one bond on the Mobile & Ohio Railroad for funding one thousand dollars arrearage of interest with coupons attached (bond No. 35). I also direct that she be paid five hundred dollars out of any funds I may have on my hand at my death. She is not to account for anything heretofore given her. I also give her my silver caster. I further give to my daughter Mary Wooldridge all my china set."

The complainants below, appellants here, among whom are the lawful heirs of Thomas G. Blewett, Sr., claim in their bill that they and the appellees herein are the lawful heirs of Thomas G. Blewett, Sr., who were living at the time of the death of Mary Wooldridge, a devisee who was given a life estate in lot 17 in the city of Columbus, and certain lands along Luxapalila river, in the fifth clause of the will, and that upon the expiration of the life estate so devised to Mary Wooldridge they became the lawful owners of the said real estate. From a decree sustaining demurrers to the bill filed by appellees, Blewett Lee et al., this appeal is prosecuted here.

A construction of items 1 and 5 will be sufficient to settle this case. Reading the two items and considering them together with the whole testament, we find that the testator, Thomas G. Blewett, Sr., devised to his daughter, Mary Wooldridge, a life estate in the property involved here, and the remainder at her death to go to the lawful heirs of the testator living at the death of the testator.

Item 1 of the will devised to Thomas G. Blewett, Jr., certain property named therein, and expressly provided that these bequests to the said Thomas G. Blewett, Jr., were to be in full of all demands on his part against the estate of the testator, and that the bequest was to be all Thomas G. Blewett, Jr., should receive from the estate of the testator. This plain provision made by the testator positively and undoubtedly excluded Thomas G. Blewett, Jr., from any further participation in the estate of Thomas G. Blewett, Sr., deceased.

The appellants rely upon two contentions for reversal here: First, it is contended that the provision in item 5 that, "At her death to be sold and the proceeds to be divided between my heirs share and share about; that is the above named lot and land," should be construed that the testator intended the property devised to his daughter Mary Wooldridge for life, should go to the heirs of the testator living at the death of Mary Wooldridge, and that the remainder in the estate after the death of Mary Wooldridge did not vest at the time of the death of the testator, but that such remainder was contingent upon the death of Mary Wooldridge, and that the estate in remainder did not vest until the death of Mary Wooldridge; second, that the provision in item 1, which excludes Thomas G. Blewett, Jr., from sharing in the estate of the testator further than the bequests to him in item 1, is in conflict with and revoked by the provision in item 5, which provides for a sale and distribution of the remainder at the death of Mary Wooldridge between the heirs of the testator.

We do not think the estate in remainder here was contingent, but the remainder, which was limited by the testator to his heirs, was a vested and not a contingent remainder, and the heirs of the testator who were living at the death of the testator were then and there vested with the remainder estate, and not the heirs who were living at the death of the life tenant. The rule is well established in the United States, as laid down in the leading English case of Bullock v. Downs, 9 H. L. 1. Lord CAMPBELL there said:

"Generally speaking, where there is a bequest to one for life, and after his death to the testator's next of kin, the next of kin who are to take are the persons who answer that description at the death of the testator, and not those who answer that description at the death of the first taker. Gifts to a class, following a bequest of the same property for life, vest immediately upon the death of the testator. Nor does it make any difference that the person to whom such previous life interest was given is also a member of the class to take on his death."

It will be observed that this rule, laid down in all the courts of this country and England, is...