Shannon v. Riley

• Decision Date: 15 April 1929
• Docket Number: 27512
• Citation: 153 Miss. 815,121 So. 808
• Court: Mississippi Supreme Court
• Parties: SHANNON v. RILEY et al. [*]

121 So. 808

153 Miss. 815

SHANNON v. RILEY et al. ^[*]

No. 27512

Supreme Court of Mississippi

April 15, 1929

Division B

Suggestion of Error overruled June 10, 1929.

APPEAL from chancery court of Tunica county, HON. HARVEY McGEHEE Chancellor.

Suit between L. C. Shannon, guardian ad litem, and Ada Lee Riley and others. From the judgment, the former appeals. Reversed and remanded.

Reversed and remanded.

J. W. Hopkins, for appellant.

Our contention is that the limitations imposed in the trust instrument executed by Frank M. Norfleet, deceased, are not violative of the rule against perpetuities; they are not contrary to what is commonly known as the "two-donee statute;" and the property is not devised as contemplated by said statute in succession to more than two donees. This is not a devise of all of the property to one child for his life and at his death to another child and so on successively to the end, and the life of each child is not to be counted in the succession of donees, but only that of the last survivor. We believe that this contention is borne out and supported by the ruling of this court in Redmond v. Redmond, 104 Miss. 512.

Complainants in their amended bill charge that there is a cross-remainder in favor of the several children of F. M. Norfleet to take effect in case any one of them should die without issue surviving, if such death should occur after the termination of said trust. We believe the law to be that a cross-remainder can exist only in two cases, first, by express words; second, by implication. Henry v. Henderson, 101 Miss. 751. On the other hand, however, a will should not have been construed so as to create a cross-remainder by implication, when in so doing the will is destroyed, because a cross-remainder by implication arises only in order to prevent a chasm. We believe that it was the intention of Frank M. Norfleet, deceased, to create the trust which was created and administered by his son J. P. Norfleet, for the use and benefit of all of the beneficiaries named in the said trust instrument. We submit that so far as the devise to childless children is concerned the case at bar is ruled by Redmond v. Redmond, supra. See, also, Hawkins v. Hawkins, 72 Miss. 749.

Edgar Watkins, Holmes, Canale, Loch & Glankler, Dulaney & Jacquess and G. T. Fitzhugh, for appellees.

Estates in fee-tail are prohibited. Sec. 2424, Hem. Code 1927. The trust instrument in the instant case clearly violates the above statute, because the donor has given estates to succession of donees then living exceeding two. See Scott v. Turner, 137 Miss. 636, 102 So. 467; Smith v. Muse, 134 Miss. 827, 98 So. 436; Hudson v. Gray, 58 Miss. 882; Nicholson v. Fields, 111 Miss. 638, 71 So. 900.

The donor makes an absolute gift to his children which he attempts to cut down by the habendum and tenendum clause of the trust instrument. He further provides in paragraph three of the habendum and tenendum clause as follows: "At the expiration of said period of ten years all of said lands and personal property is to be divided in kind among said trustee and his sisters and brothers equally share and share alike." He then attempts to cut down that estate by making the further provision that said donees, "shall then have and take absolute control of his or her share or portion of said property with right to all rents, income and profit therefrom for and during the term of his or her natural life only, and at the death of each of them the absolute title in fee to his or her share or interest in said lands, with all rents, income and profits therefrom, is to vest absolutely and in fee in the child or children of the body of each, or the descendants of children." 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 original donee takes a fee-simple absolute. Gray, Rule Against Perpetuities (3 Ed.), sec. 423, p. 370; Smith v. Muse, supra; Nicholson v. Fields, supra; Scott v. Turner, supra.

The principle that, although an ulterior limitation of the estate devised be void, the will or deed may be sustained by dropping the limitation and leaving the rest of the will to stand, cannot be applied, where the provision cannot be separated without interfering with the donor's manifest purpose as shown by the will or deed. Therefore, the court must strike down the contingent remainders to the descendants of children of the donor. Gully v. Neville (Miss.), 55 So. 289. This seems to be the rule generally applied in many other jurisdictions. Lyons v. Bradley, 168 Ala. 505, 53 So. 244; Re Fair, 132 Cal. 523; Re Whitney, 176 Cal. 12; Dotten v. Glennie, 93 Conn. 472; Eldred v. Meek, 183 Ill. 26, 55 N.E. 536; St. Amour v. Rivard, 2 Mich. 294; Shepherd v. Fisher, 206 Mo. 208; Knox v. Jones, 47 N.Y. 389; Underwood v. Curtis, 127 N.Y. 523; Re Christie, 133 N.Y. 472; Brown v. Richter, 76 Hun. 469, 27 N.Y.S. 1094; Johnson's Estate, 185 Pa. 179; Kountz's Estate, 213 Pa. 390. The donor in the instant case has attempted to convey property in remainder to his living and unborn grandchildren and their descendants (if any such descendants happen to be living at the death of the child of the donor), if the descendants of any such deceased child of the donor happen not to be in existence on the death of the child, then there is a conditional limitation over to the other children of the donor or their descendants. Here is a clear and unmistakable violation of the two-donee statute. A gift over on conditional limitation to a class of persons, some of whom are not in existence, being void as to those in existence when the devise goes into effect, is void in toto as to the whole class. Caldwell v. Willis, 57 Miss. 555; Gray, Rule Against Perpetuities (3. Ed.), sec. 375, p. 333; 1 Jarmon on Wills, 533; 2 Washburn on Real Estate (6 Ed.), 680; Scott v. Turner, supra.

It is generally true, as contended by appellant, that the primary rule of construction is to arrive at the intent of the donor and then give that intent effect, if it can lawfully be done, and with this rule of construction we have no quarrel. But applying that rule of construction to the instrument under consideration leads us to a clear violation of the two-donee statute. 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, if that intention violates the rule against perpetuities. Therefore, every provision in a will or settlement is to be construed as if the rule against perpetuities did not exist, and then to the provisions of the instrument so construed the rule is to be remorselessly applied. Applying first the rule of construction and then applying the rule of law, we find the trust instrument flagrantly violating the two-donee statute of this state. Henry v. Henderson, 103 Miss. 48; 2 Alexander on Wills, sec. 1163, p. 1677.

The contingent remainder to a child or children or descendants of a child of the donor (if such child or children or descendants of the child of the donor be living on the death of the first taker) can never become a vested remainder during the life of the child of the donor; because the descendants or children of a child of the donor must be living at the time of the death of the child of the donor, otherwise such descendants of a child of a donor get nothing. To hold otherwise would be giving to the descendants of a child of the donor a vested and transmissible estate. In which event, a surviving spouse of some deceased descendant of a child would transmit to such spouse a fee-simple estate. This would violate the whole purpose of the donor, whose evident purpose was to keep the ownership of the lands in his own blood as long as possible. He did not even permit the husbands of his own daughters to take anything under the trust instrument. Yet by indirection, if the trust instrument is upheld, a descendant of the deceased child might transmit to its mother or father by inheritance; that is, if the remainder to the children or descendants of a child of the donor is upheld. To uphold the trust instrument further than the gift or gifts to the first set of donees would do extreme violence to the expressed intention of the donor in other parts of the trust instrument. So that the contingent remainder, if upheld, to the descendants or children of a child of the donor, born and unborn, would create such a confusion in the title to the property in question, and would do such violence to the otherwise expressed intention of the donor, as makes it imperative to follow the peremptory command of the law, rather than to follow a rule of construction which would bring about a clear violation of the express intention of the donor in other parts of the trust instrument.

Orally argued by J. W. Hopkins, for appellant, and J. E. Holmes and J. W. Dulaney, for appellees.

OPINION

GRIFFITH, J.

On the 1st day of September, 1918, Frank M. Norfleet, a man of advanced years and whose wife was dead, made and delivered the following instrument:

"Know all men by these presents, that I, Frank M. Norfleet, do hereby, for and in consideration of one ($ 1) dollar, to me in hand paid, and for other good and valuable considerations heretofore received by me, and the receipt of all of which is hereby acknowledged, bargain, sell, give, grant and convey to my son, Jesse P. Norfleet, as trustee, and in trust for himself and his sisters, Mrs. Wilson Norfleet Felder, Mrs Ada Lea Norfleet Riley, Mrs. Eugenia Norfleet Conkrite, and his brothers, Cecil M. Norfleet and ...