Stigler v. Shurlds

• Decision Date: 19 March 1923
• Docket Number: 22953
• Citation: 131 Miss. 648,95 So. 635
• Court: Mississippi Supreme Court
• Parties: STIGLER et al. v. SHURLDS et al

95 So. 635

131 Miss. 648

STIGLER et al. v. SHURLDS et al

No. 22953

Supreme Court of Mississippi

March 19, 1923

1 WILLS. Devise for life with remainder to heirs or heirs of body creates estate for life with remainder in fee simple to designated class.

Under sections 2269 and 2280. Hemingway's Code (sections 2765 and 2776, Code 1906), a devise of land to a person for life with remainder to his heirs or heirs of his body, creates an estate for life in such person, with remainder in fee simple to his heirs or the heirs of his body.

2 PERPETUITIES. Devise of remainder in fee vesting upon death of the first life tenant held valid.

Section 2269, Hemingway's Code (section 2765, Code 1906), which provides that a person may make a conveyance of lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainderman, and, in default thereof, to the right heirs of the donor, in fee simple, is not violated where it is possible for the remainder in fee to vest upon the death of the first life tenant.

HON. T P. GUYTON, Chancellor.

APPEAL from chancery court of Holmes county, HON. T. P. GUYTON Chancellor.

Suit by Mary Ella Stigler and others against John S. Shurlds and others. From a decree sustaining a demurrer to the bill and dismissing it, plaintiffs appeal. Affirmed.

Decree affirmed.

Noel, Jordan & Neilson, for appellants.

1. "Time Runs from Date of Testator's Death." "A will does not become effective until the death of the testator. Until then, it is ambulatory in character and revocable at pleasure. No disposition by will can take effect during the testator's lifetime. So, with devises and bequests, in determining the time until which the vesting of an estate or interest in property may be postponed or its alienation restricted, the time is computed from the date of the death of the testator."

2. Commentaries on Wills, Alexander, p. 1681-2. Under this authority is given a note citing about twenty cases, and with no conflict. "It is the well settled general rule that wills should be construed to speak and take effect as if executed immediately before the death of the testator, unless a contrary intent shall appear." Citing numerous authorities. 28 R. C. L. 234, sec. 196. These absolutely established legal principles destroy the whole basis upon which rests appellee's contention of the validity of the will.

II. Common Law Rule Against Perpetuities. "To constitute a valid executory devise, at the common law, the contingency upon which it is to take effect must occur within a life or lives in being and twenty-one years and ten months thereafter." See Caldwell v. Willis, 57 Miss. 555. Thomas v. Thomas, 53 So. 633.

It is not only possible to conceive, at the time of the death of testatrix, that her daughter would marry and would have children and that those children, possibly a half a dozen or more, might live to the allotted three score years and ten, but it actually was demonstrated that the marriage did occur, and that one child was born and is now living, and may live to ninety years old. Therefore, the attempt of the will to perpetuate testatrix's control of her property beyond the life of her daughter, and through the lives of the daughter's children, invalidated the will, being clearly violative of the common law doctrine just mentioned.

Then again, looking to the provision of section 2269, Hemingway's Code (2765 Code, 1906), we see that the provisions in the will palpably exceed the limitation therein provided. It attempts to create, in the event of marriage, and issue of marriage, three life estates at least two successively, and one to a person, the daughter not then living, with remainder over not to the right heirs of testatrix, who were her living nephews, but to the children of these nephews, who were not her right heirs, nor at that time, heirs at all. The three life estates were to the daughter, to her husband, whose use of the property was direct, not through any trustee, and phrased in the same terms as that providing for the daughter, and the third the unborn child. There could not be a more palpable violation of the statute against fee tails. The application of this statute is not a matter of discretion, but one of absolute law. As stated in Jordan v. Roach, 32 Miss. 481, cited in our original brief: "It may with certainty be affirmed, that there is nothing in the proviso or upon the face of the statute, or within its equity, nor any consideration arising from the policy indicated by the law, from which the authority can be inferred to limit an estate upon a contingency which is not to happen within the compass of time prescribed by the proviso . . . of the statute."

"When we assert the want of power, we decide upon the invalidity of the grant or devise, and if we test the validity of the limitation in question by the provision of the statute it is seen clearly, that it is not only unwarranted by it, but repugnant to the obvious policy of the law."

III. All Provisions of Law in Restraint of Alienation Must be Strictly Construed. This doctrine is so firmly established that it hardly needs citations for its support. It is upheld by this court in Orrell v. Bay Manufacturing Co., 83 Miss. 500, 76 So. 561.

IV. The Law. Favors Vesting of Estates at the Earliest Moment. Branton v. Buckley, 54 So. 850; 28 R. C. L. 192, at page 231.

V. The Law Favors the First Taker. "In case of doubt, the construction of a will should be in favor of the first rather than of the second taker. This is due to the fact that it is contrary to the policy of the law to tie up property, and because the first taker under a will is presumed to be the favorite of the testator." Citing authorities. 28 R. C. L. p. 230, sec. 191. A devise to one for her natural life, and at her death to the heirs of her body, conveys the fee to the first taker. Harris v. McCann, 75 Miss. 805, 23 So. 631. Likewise, a devise of all property to a sister of testator, although it be followed, in the will, immediately by the words "at her death, her heirs are to have it," gives fee to the first taker. Harvey v. Flowers, 91 Miss. 242, 45 So. 571.

CONCLUSION

We deem it unnecessary to discuss the four statutes set forth on pages 8 and 9 of appellee's brief. The first cited nearly eliminates any necessity for use of words of inheritance in a deed. The second abolishes fee tails and places limitation upon the control of estates. The third merely abolishes the rule in Shelley's Case. And the fourth makes clear certain terms of doubtful signification, but they all go together and are free of conflict.

We likewise deem it unnecessary to discuss the case of Henry v. Henderson, 69 So. 33, and other like cases, creating trusts, depriving beneficiaries of any control over the estate and making their interests mere charges, with remainders over.

The case of Liberty Bank v. Wilson, 116 Miss. 377, has no application, because on then existing conditions, the complaint had no right or claim, a mere possibility, in the case of death of several children.

We represent Mrs. Stigler, her husband and her child, who are appealing to this court for a construction of the will, against the adverse claims of appellees, who seek to hold the ultimate ownership in suspense, possibly for seventy years to come, certainly until after the deaths of Mr. and Mrs. Stigler and of all of their children, which constitutes a cloud on the title of Mrs. Stigler, and on the beneficial ownership. If the title, under the law, vests in Mrs. Stigler, the child can have no complaint, for her future is secure in that of her mother. If it clearly vests in the child, that will be entirely satisfactory to the father and mother. Under the amended bill and the answers of Mr. Stigler and of the child, through its guardian ad litem, we submit that a final decision should now be rendered, and confidently hope that it may vest a fee in the mother or daughter, either of which vestitures will be entirely satisfactory to us and to the adult appellants.

Booth & Pepper, for appellees.

As the will in our judgment does not create an estate tail in Mary Ella Lyons Stigler, we contend that Sections 2765 Code 1906, Hemingway's Code, 2369, and the other authorities cited on page 3, brief of opposing counsel, are inapplicable, as we will undertake further on to show, and will then answer briefly point II of opposing counsel.

As to point III, we answer that we have raised no question in our demurrer, as to the jurisdiction of courts of equity to construe wills, and to remove clouds on titles, whether arising out of the language of wills or otherwise. The demurrer and objections extend not to the construction of the will by the court, but to the construction placed upon the will by opposing counsel which they would have the court adopt. There are other provisions of law bearing upon the questions at issue in this cause which counsel for appellant do not cite or refer to, and which we will quote in this argument.

As to point IV, we state that no question of the failure of appellant to deraign title has been raised by us in either demurrer or brief, and it was foreign to any thought or intention on our part to raise any such question.

The will of Mrs. Mary Lyons cannot properly be construed as in violation of Section 2765. The case of Banking Co. v. Field, 84 Miss. 646, is cited by us as adverse to such a contention, and it declares that the object of the statute prohibiting estates tail is to prescribe a limit of time beyond which the vesting of the estate in fee cannot be suspended, but within that limit it permits the exercise of unbounded discretion by the donor; and that the statute prescribed a limit of time and not a formula of conveyancing.

We call...