Scott v. Turner

• Decision Date: 03 January 1925
• Docket Number: 24351
• Citation: 137 Miss. 636,102 So. 467
• Court: Mississippi Supreme Court
• Parties: SCOTT v. TURNER et al. [*]

102 So. 467

137 Miss. 636

SCOTT v. TURNER et al. ^[*]

No. 24351

Supreme Court of Mississippi

January 3, 1925

Division B

1 WILLS. Child born within ten months after testator's death, or aftertime devisees must be living to take under will, takes under will; "in esse."

A child born within ten months after the death of a testator, or within ten months after the time the devisees must be living to take under a will, is in contemplation of law "in esse" and takes under the will.

2 PERPETUITIES. Devise to succession of donees then living three in number, is void.

The second part of section 2765, Code of 1906, section 2269 Hemingway's Code, provides that any person may make a conveyance or a devise of lands to a succession of donees then living not exceeding two, etc. Under this section a devise of lands to a succession of donees, three in number, is void.

3. PERPETUITIES. Wills. Will construed according to intention of testator; statute applied to construction of will according to intent.

A will is to be construed bye the court in accordance with the intention of the testator. After so construed, the above section of the Code is to be applied to this construction to see whether or not this section is violated.

4. WILLS. Effect of statute avoiding future interests on prior interests, stated.

If future interests created by a will are avoided because of the above-named statute, the prior interests become what they would have been had the limitation of the future estates been omitted from the will.

5. WILLS. Devise held absolute gift in fee upon elimination of invalid gifts over.

Under the item of the will now being construed, eliminating the limitations and qualifications which are too remote because violative of this statute, it is held, that there was an absolute gift in fee to the childless children living at the end of the twenty-year period when the estate was to be distributed.

6. PERPETUITIES. Devise held illegal as providing for succession of more than two donees.

Item 3 of this will is construed as violating the above statute because there was a succession of three donees therein provided for.

HON. C. L. LOMAX, Chancellor.

APPEAL from chancery court of Tunica county, HON. C. L. LOMAX, Chancellor.

Action between C. M. Scott, executor, etc., and Mrs. Mittie L. Turner and others. From decree for the latter, the former appeals. Reversed and remanded.

Decree reversed, and cause remanded.

Holmes & Canale and Dulaney & Jacquess, for appellants.

1. Even if the chancellor were correct in holding that the childless children took only a life estate, then they could not be made to give security for funds distributed to them, because: (a) The will provides that they shall "participate" in the devise, and shall "receive" the share which comes to them; (b) the testator indicated no intention that security should be required; (c) the record does not show that the childless children are insolvent, or that the money will be squandered, but, on the contrary, shows that one of the childless children, C. M. Scott, has been acting as executor without bond and has accumulated the fund. Martin v. Martin, 69 Miss. 315, 13 So. 267; Hill v. Godwin, 114 Miss. 324, 75 So. 132; Note 14 L. R. A. 1066-1073.

2. Where there is a devise to one with executory devise over, if the first taker dies without issue surviving, then the first taker has a determinable fee. John B. Halsey et al. v. James J. Gee et al., 79 Miss. 193; Armstrong et al. v. Thomas et al., 112 Miss. 272; 1 Underhill on the Law of Wills, sec. 468, p. 622; Peter Anderson v. United Realty Co., 51 L. R. A. (N. S.) 477, 79 Ohio 23, 86 N.E. 644; Middlesex Banking Co. v. Field, 84 Miss. 657; Brattle Square Church v. Grant (Mass.), 63 Amer. Dec. 725, (3 Gray 142); 2 Underhill on the Law of Wills, secs. 845-846, p. 1272, et seq.; Busby v. Rhodes, 58 Miss. 237; Smith et al. v. Muse et al. (Miss.), 98 So. 436.

3. The rule against perpetuities is not a rule of construction, but a peremptory command of law. It is not like a rule of construction, a test more or less artificial to determine intention. Its object is to defeat intention; therefore, every provision in a will or settlement is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied. Henry v. Henderson, 103 Miss. 69; Rule Against Perpetuities, by Gray (3 Ed.), sec. 629, p. 497; 2 Alexander on Wills, sec. 1163, p. 1677.

4. The testator had four childless children when he died. He gave to each of them a determinable fee, conditioned upon their being alive at the end of twenty years without issue. Three of his children are living at the end of twenty years without issue. The childless children take under the will, each from the other, an undivided interest in the determinable fee which each has. There is a succession of living donees exceeding two. The will in this case is an express violation of section 2765, Code of 1906 (Hem. Code, sec. 2269). This case is absolutely ruled by: Hudson v. Gray, 58 Miss. 882; Smith et al. v. Muse, et al., supra.

5. When there is a good absolute gift and the testator goes on, in an additional clause, to modify the gift, and by modifying it, makes it, in part, too remote, the modification is rejected in toto, and the original gift stands. So that each of the childless children of the testator in this case takes a fee simple absolute. Rule Against Perpetuities, by Gray (3 Ed), sec. 423, p. 370; Smith et al. v. Muse et al., supra; Nicholson v. Fields, 111 Miss. 639.

6. The will in the case at bar further violates the Two Donee Statute because there are executory devises to persons not in being at the death of the testator, or at the end of twenty years, and such persons are not heirs of the body of the last remainderman, and neither are they right heirs of the donor. In a word, grandchildren of the testator, or their children, or children's children (all then and now may be unborn), might take an interest in the limitation over from a childless child of the testator dying without issue. Such a limitation over is therefore void. Davenport v. Collins, 95 Miss. 370; Nicholson v. Field, supra; Smith v. Muse, supra.

7. A gift over on conditional limitation to a class of persons, some of whom are not in existence, being void as to those not in existence when the devise goes into effect, is then void in toto as to the whole class. Caldwell v. Willis, 57 Miss. 574; Rule Against Perpetuities, by Gray (3 Ed.), sec. 373, p. 333; 1 Jarmon on Wills, 533; 2 Washburn on Real Property (6 Ed.), 680.

8. In this case, the executory devises over being void, for the reasons stated, the first taker gets the fee simple absolute, or else the Third Item of the will is void in toto. Gully v. Neville (Miss.), 55 So. 289.

Edgar Webster, T. K. Riddick and E. B. Carter, for appellees.

The one fundamental rule governing the construction of a will is to ascertain what the intent of the testator was. And in order to ascertain the intent, words of limitation shall operate as words of purchase; implication, shall supply verbal omissions; the letter shall give way to the spirit; and inaccuracies of grammar and impropriety of terms shall be corrected by the general meaning, if that be clear and manifest. Ball v. Phelan, 94 Miss. 293, 49 So. 956; Inglis v. Trustees of the Sailors Snug Harbor (Sup. U. S.), 7 L.Ed. (U.S.) 617 (624); Gordon v. McDougall, 84 Miss. 715, 37 So. 298; Hale v. Nelson, 72 So. 1012.

A limitation conferred upon the death of the first taker is an indication of an intention that the first taker shall have a life estate only. 17 R. C. L., Life Estate, par. 11; Busby v. Busby, 1 U.S. (L. Ed.) ; Giles v. Little, 26 U.S. (L. Ed.) 745; Pate v. Bushang, 69 N.E. 291, 100 Amer. St. Rep. 287; Clark v. Mack, 126 N.W. 632, 28 L. R. A. (N. S.) 479; Mee v. Gordon, 80 N.E. 353, 10 Ann. Cas. 172.

The law favors a vesting of estates, and an estate will not be held to be contingent unless very decided terms are used in the will, or unless it is necessary to hold in order to carry out the other provisions of the will. 28 R. C. L., Wills, par. 192; Tatham's Estate, 95 A. 520; 1917A. Ann. Cas. 855; Schlater v. Lee, 78 So. 700; Harris v. McLoran, 30 Miss. 533; McDaniel v. Allen, 64 Miss. 417, 1 So. 356.

A bequest or devise may be made by mere implication and a devise over in case the devisee should die, "without leaving a family," or "without heirs," or "without a child," is an implied devise to such family, heir or child, if there are other words in the will which indicate that the testator had in mind to bestow an interest on these persons. Ball v. Phelan, supra; Beilstein v. Beilstein, 45 A. 73, 75 Amer. St. Rep. 692; Boston Safe Deposit & T. Co. v. Coffin, 25 N.E. 30, 8 L. R. A. 740; Moon v. Stewart, 10 N.E. 344, 45 L. R. A. (N. S.) 48; Masterson v. Townsend, 24 N.E. 928, 10 L. R. A. 816; Conner v. Gardner, 82 N.E. 640, 15 L. R. A. (N. S.) 73.

General expressions apparently giving the tenant for life a limited power over the estate must be regarded as referring only to the disposition of the life interest. And in order to authorize the life tenant to dispose of the inheritance and cut off the interest of the devisee, the language must be definite, clear and specific. 23 R. C. L., Remainders, 6; 7 Ann. Cas. Note 955; Greves v. Comery, 28 N.W. 564; Whittmore v. Russell, 14 A. 19; McDaniel v. Allen, 64 Miss. 417, 1 So. 356.

Unless so authorized by specific language and precise and clear words, the life tenant must not commit waste, destroy timber or cut wood for commercial purposes. 17 R. C. L., par. 23, p. 534; Learned v. Ogden, 80 Miss. 769, 32 So. 278, 92 Am. St. Rep. 621, 21 A. L. R., p. 1011; Board of Supervisors v. Gans, ...