Summary
In Crump v. Phelps, et al, 207 Miss. 682, 43 So.2d 105, the testatrix provided among other things that "`I devise and bequeath to my daughters, naming them, and my son, naming him, all of the said real estate in this clause mentioned, subject however to the further restrictions in this clause hereinafter mentioned.
Summary of this case from Carter v. Sunray Mid-Continent Oil Co.Opinion
No. 37248.
November 28, 1949.
1. Wills — devise with executory limitation over — title subject to be divested upon death of devisee without issue, effect of such a provision.
Under a will which devised the land in question to the four children then living of the testatrix, but with the executory limitation over that upon the death of either of them without issue his or her share shall be divided among the survivors and the issue of those who have died, the issue to take by representation the interest to which the deceased parent would have been entitled, the estate thereby devised to the four children was a defeasible fee simple title, a title subject to be divested as to each devisee upon his or her death without issue, provided there then be a surviving named devisee or issue of such named devisee, with the result that the last surviving named daughter, without issue or the possibility thereof, is vested as to her share with what is in effect a life estate only, and that the issue of her deceased brother and sisters were vested with a fee simple title subject to such life estate.
2. Wills — contingent limitation depending upon the death of any person without issue.
Under the statute, Sec. 837, Code 1942, it is not necessary to the effectiveness of an executory limitation over dependent upon the death of a devisee without issue that one of the devisees subject to the limitation shall have predeceased the testatrix.
3. Wills — partition by devisees who held life estates only, effect of.
Partition by deed of the devised property between themselves by the named devisees who held under the will what in effect were life estates only could not operate to affect the title of the children of the devisees, who under the will took the remainder in fee simple after the death of each of their respective parents, especially where the children were either minors or not yet in esse.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Sharkey County, J.L. Williams Chancellor.
H.C. Stringer and G.L. Martin, for appellant.
Was it not the intention of Mrs. Phelps that the contingency referred to the death of any of her children during the life of the testatrix and if they survived her, they took in fee simple title? Nations v. Mortgage Co., 115 Miss. 741, 76 So. 842; Sims v. Conger, 39 Miss. 310, 77 Am. Dec. 871; 20 Am. Ency. Law 708; 3 Jarmon on Wills (6th Ed.) 2144; Bibby v. Broome, 116 Miss. 70, 76 So. 835; Tiedeman on Real Prop. (Enlarged Ed.) Sec. 533,
Did the testatrix intend to devise to each of her four children a life estate in the lands? Sec. 2435 Code 1892; Sec. 833, Code 1942; Tiedeman on Real Prop. (Enlarged Ed.) Secs. 396, 398; Strickland et al. v. Delta Inv. Co., 163 Miss. 772, 137 So. 734; Busby v. Rhodes, 58 Miss. 237; Nations v. Colonial U.S. Mort. Co., 115 Miss. 741, 76 So. 642.
Was it not the intention of the testatrix to devise to each of her children a fee simple title of an undivided 1/4 interest in the property, determinable upon the contingency of each dying without issue living at the death of each, with contingent limitations over; in other words a determinable fee? Sec. 2448 Code 1892; Sec. 837 Code 1942; Jarmon on Wills (6th Am. Ed.) Vol. 1, 555, 556; Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Busby v. Rhodes, 58 Miss. 237; Halsey v. Gee, 79 Miss. 193; Brattle Square Church, 3 Gray 142, 63 Am. Dec. 725; Ball v. Phelan, 94 Miss. 328; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Jordan v. Roach, 32 Miss. 481; Ball v. Phelan, 94 Miss. 293, 47 So. 956, page 328 of Miss. Rep.; Thompson on Wills (3rd Ed.) Sec. 348; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Preston on Estates, 445.
Does not Ellen now get the whole of her partited area? Sec. 2441 Code 1892; Jordan v. Roach, 32 Miss. 481; Blackstone's Com. Bk. 2, pp. 200, 201; 1 Preston on Estates 445, 275, 278; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1008; Halsey v. Gee, 79 Miss. 193, 30 So. 604; 24 Am. Eng. Ency. Law, (2d Ed.) 454; Sec. 468 Code 1942; Sec. 1543, Code 1892; Redfield on Law of Wills, Vol. 1, p. 241.
Did not Ellen get the whole of the estate in her partited portion by the arbitration agreement followed by the quitclaim deed, each to the other? If not, then did not Ellen get the 3/4 interest therein? Sec. 2441 Code 1892; Sec. 2438 Code 1892; Sec. 2482 Code 1892; Secs. 845, 846, Code 1942; Jordan v. Roach, 32 Miss. 615, 128 Miss. 39, 90 So. 848; Sec. 2433 Code 1892; Sec. 831 Code 1942; Hamilton v. City of Jackson, 157 Miss. 284, 127 So. 302; Myers v. Am. Oil Co., 192 Miss. 180, 5 So.2d 218; Gully v. Neville, 55 So. 289; Fink v. Henderson, 74 Miss. 8; Ricks v. Riddell, 200 Miss. 122, 26 So.2d 782.
Does not the will of Mrs. Phelps violate the proviso of the Two Donee Statute? Secs. 2436, 2448 Code 1892; Smith v. Muse, 134 Miss. 827, 98 So. 436; Nicholson v. Field, 111 Miss. 638, 71 So. 900; Norfleet v. Norfleet, 151 Miss. 790, 119 So. 306; Hudson v. Gray, 58 Miss. 822; Scott v. Turner, 137 Miss. 636, 102 So. 467; Darrow v. Moore, 163 Miss. 705, 148 So. 447; Brattle Square Church, 3 Gray (Mass.) 142, 63 Am. Dec. 725.
Did testatrix mean to create a fee tail estate? Tiedeman on Real Prop. (Enlarged Ed.) Sec. 47; 1 Washburn Real Prop. 100; 15 Am. Rep. 545, 3 Am. Rep. 171; Sec. 2435, Code 1892; Sec. 2448 Code 1892; Ball v. Phelan, 94 Miss. 344; Nachell v. Welding, 8 Sim. 4; 2 Powell on Devisees, 602, 20 Law Library, 321; Hausberry v. Davenport, 3 Vesey 257; Bernard v. Montague, 1 Mer. 424; Leigh v. Norberry, 13 Vesey 340; Freeman v. Paisley, 3 ib, 421; Rule in Wild's case (6 Coke, R. 17); 1 Cruise 81; 6 ib. 250, chap. 121, Tit. Devise; 2 Preston on Estates, 504, 505, 506, 507; 6 Cruise 256, 257; Fearne on Remainders 466; Jarmon on Wills, 237, 238.
Are not the limitations over too remote, and, therefore, void for uncertainty? Bibby v. Broome, 116 Miss. 70, 76 So. 835; Caldwell v. Willis, 57 Miss. 574; Gray's Rule Against Perpetuities (3rd Ed.) Sec. 873, p. 333; 1 Jarmon on Wills, 553; 3 Washburn on Real Prop. (6th Ed.) 680; 4 Kent's Com. 276; Gray's Rule Against Perpetuities p. 229.
Brunini, Brunini Everett, for appellees.
The provision of testatrix' will in question devised fee simple title to each of her children, defeasible, however, upon the death of each such child without issue. 28 R.C.L. 241, Wills, Sec. 206; 19 Am. Jur. 572, Estates, Sec. 116; 21 C.J. 922, Estates, Sec. 18; 31 C.J.S. 22, Estates, Sec. 10; 19 Am. Jur. Sec. 124, p. 580; 69 C.J. 476, Sec. 1553 of Wills; 31 C.J.S. 134, Sec. 121 (b) of Estates; Sec. 837 Code 1942. This statute has been carried down in identical language from the original Code of 1824; Jordan v. Roach, 32 Miss. 481; Sims v. Conger, 39 Miss. 231; Busby v. Rhodes, 58 Miss. 237; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Hanie v. Grissom, 178 Miss. 108, 172 So. 500; Dunlap v. Fant, 74 Miss. 197, 20 So. 874; Halsey v. Gee, 79 Miss. 193, 30 So. 604; Scottish-American Mtge Co. v. Albert Buckley, 81 Miss. 646, 37 So. 139; Ball v. Phelan, 94 Miss. 293, 49 So. 956.
Mrs. Phelps intended that the executory limitations should operate upon the event of her children's deaths without issue surviving at that time, whether their deaths occurred prior or subsequent to that of the testatrix. Sec. 837 Code 1942; Powell v. Brandon, 24 Miss. 343; Hampton v. Rather, 30 Miss. 193; Jordan v. Roach, supra; Busby v. Rhodes, supra; Sims v. Conger, supra.
The executory limitation contained under the fourth provision of Mrs. Phelps' will operates to pass the divested fee title upon the happening of the contingency stated to the then living children of the testatrix, or to the children, if any, of those who were dead at that time. 19 Am. Jur. 556, Estates, Sec. 96; Section 98 of Estates, 19 Am. Jur. 557; 1 Simes, Law of Future Interest, 272, Sec. 153; DeWolf v. Middleton, 18 R.I. 810, 31 A. 271; Thomas v. Thomas, 97 Miss. 697, 53 So. 630.
The arbitration agreement and partition deed executed by Nannie, Mary, Henry and Ellen were intended to be, and were, effective solely to transmute the undivided interests of the parties in the whole of Nitta Yuma Plantation into partited equal portions of said plantation, and were neither designed nor effective for the purpose of altering the title by which the respective interests of said parties were to be held. Englestein v. Mintz, 35 Ill. 48, 177 N.E. 746; Coffey v. Superior Court of Sacramento, 147 Calif. 525, 82 P. 75; 16 Am. Jur., Deeds, Sec. 259, 1948 Pocket Parts 57; Harley v. Magnolia Petroleum Company, 378 Ill. 19, 37 N.E.2d 261; Ozehoski v. Scranton Water Service, 157 Pa. Super. 437, 43 A.2d 601.
Mrs. Phelps' will does not violate provisions of the two donee statute as stated in Section 2436 of the Code of 1892. Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Hanie v. Grissom, 178 Miss. 108, 172 So. 500; Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Bibby v. Broome, 116 Miss. 70, 76 So. 835, 842.
Testatrix did not intend to create a fee tail under the fourth provision of her will; and the limitations stated under the executory devise of said paragraph are not too remote and are not void as being in violation of the rule against perpetuities. Sec. 2448 Code 1892 (now shown as Sec. 837 of the Code of 1942) as applied by our Supreme Court in Jordan v. Roach, 32 Miss. 481; Sims v. Conger, 39 Miss. 731; Hanie v. Grissom, 178 Miss. 108.
Ellen Phelps Crump has not acquired any greater rights by means of adverse possession against appellees than she was originally granted under the will in question. 1 Am. Jur. 860, Adverse Possession, Secs. 121, 122; Gibson v. Jayne, 37 Miss. 164; Hoskins v. Ames, 78 Miss. 986, 29 So. 828; Anglin v. Broadnax, 97 Miss. 514, 52 So. 865; Clark v. Foster, 110 Miss. 543, 70 So. 583.
Mrs. Crump, the appellant, by her bill in this cause, asserts she is the fee simple owner of a described tract of land under the terms of a will of Mrs. Mary Bullock Vick Phelps, or, if not by the will, then by virtue of a partition agreement executed by the four named beneficiaries in the will. Appellees contend she is not the fee simple owner but say she has only a life estate in the tract in question. The chancellor dismissed the bill and Mrs. Crump appeals.
The primary question is what title vested in appellant by that will under the facts of this case. These are the circumstances: The testatrix owned valuable real estate in Bolivar and Sharkey Counties, Mississippi, and in Louisville, Kentucky, and much personal property. The land in Sharkey County comprised what was known as the Nitta Yuma plantation, aggregating approximately four thousand acres, of which the tract in question, consisting of near one thousand acres, was a part.
At the time of the execution of the will, July 7, 1900, and at the date of the death of the testatrix, February, 1901, her only heirs at law consisted of her four children, namely, Nannie Phelps George, then married, with one child; Mary Phelps Piola Casseli, married with two children; Henry Vick Phelps, a son; and appellant, a daughter, both then unmarried. Later Mrs. Casseli had another child. Henry Vick Phelps married and had two children, both boys, one of whom predeceased his father without issue; the other survived his father. Appellant later married but had no issue, and there is an agreement in the record that at the time of the trial she was beyond the age possible to have issue. At the time of the trial all of the children of testatrix were dead except appellant. All of the grandchildren of testatrix above named, except the deceased child of Henry Vick Phelps, were then living, and are parties defendant to this suit. In other words, this is a contest between appellant and her five nieces and nephews.
The will, after setting out a number of provisions not pertinent to the issues here involved, created a trust in the Nitta Yuma plantation for the benefit of the four named devisees, and the survivor or survivors of them, and the issue or issues of deceased devisees, to continue not longer than twenty years, but with the power in a majority of the trustees to terminate the trust at any time. Then appear these provisions:
"I devise and bequeath to my said daughters, Nannie Phelps George, Mary Phelps Piola Casseli and Ellen Bodley Phelps, and my son, Henry Vick Phelps, all the said real estate in this clause mentioned, subject however to the further restrictions in this clause hereinafter mentioned. But in the event of the death of either of my said daughters having no issue, then the share of such daughter in real estate referred to in this clause, shall be equally divided between my surviving daughters and son, and the issue of those who may have died, the said issue to take by representation the interest to which the deceased parent would have been entitled; . . . . In the event of the death of my said son, having no issue, then in such case the share of such son, in the real estate referred to in this clause, shall be divided equally between the surviving daughters and the issue of those who have died, the issue to take by representation in the interest to which the deceased parent would have been entitled; . . . ."
(Hn 1) It is the contention of appellant that the quoted clauses of the will, under the facts here, vested in her a fee simple title to a one-fourth interest in the Nitta Yuma plantation. Appellees say she is vested only with a life estate. We construe these provisions as vesting in the named devisees a defeasible fee simple title — that is to say, a fee simple title subject to be divested, as to each devisee, upon her or his death without issue, provided there then be a surviving devisee or issue of deceased devisee, or both, in which case the surviving devisees and the issue of deceased devisees become vested with fee simple title to the estate given the deceased devisee, "the said issue to take by representation the interest to which the deceased parent would have been entitled . . .". Sims v. Conger, 39 Miss. 231, 77 Am. Dec. 671; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; 19 Am. Jur. pg. 672, Sec. 116, and pg. 580, Sec. 124. This means appellant is vested with a life estate in the Nitta Yuma plantation, and the appellees are vested, per stirpes, with a fee simple thereto subject to such life estate.
But (Hn 2) appellant seems to contend that the foregoing executory limitation over could not become effective unless the death of one of the children of testatrix occurred prior to her death. Section 837 Mississippi Code 1942 provides that, "Every contingent limitation in any . . . will made to depend upon the dying of any person . . . without issue . . . shall be held and interpreted as a limitation, to take effect when such person shall die not having such . . . issue . . . living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared on the face of the instrument creating it." The effect of that section, as applied to the terms of this will, is to contradict appellant's contention.
(Hn 3) Appellant next says that the four children of testatrix, designated as devisees in the will, and the three executors therein, partited the Nitta Yuma plantation and that by virtue of such written partition she was vested with fee simple title to the part thereof claimed by her in this suit. The first agreement, executed May 20, 1901, appointed three arbiters, and conferred upon them the duty and power to have Nitta Yuma plantation divided into four parcels, as near equal in value as possible, and to appoint a third person to draw lots to determine the tract to which each devisee was entitled. This was done, appellant receiving the parcel claimed by her in this suit. On July 20, 1901, the four devisees executed to each other in writing a quitclaim to the respective tracts so allotted to each, and each took possession of such tract. As we understand, Mrs. Crump has remained in possession of her allotted acreage to date of this suit. The other three children remained in possession of their allotments until their respective deaths, and, presumably, their children have been in such possession since the deaths of their parents. However, these agreements served only to separate the use and income of the divided parcels. They did not, and could not, confer upon the respective grantees fee simple title to the purported shares for these reasons: First, they could not change the terms of the will; second, they did not purport to change such terms, for the arbitration agreement recited "The title, however, to be vested subject to the provisions of the will of Mary Bullock Vick Phelps, deceased," and the partition agreement recited "the said parties hereby quitclaim and convey subject to the provisions of said will", and, third, the agreements could not affect the rights of appellees, especially since two of them were not then in esse, and the others appear to have been minors.
We have considered the other points raised by appellant and find them not well taken.
Affirmed.