77 Miss. 358 | Miss. | 1899
delivered the opinion of the court.
The decree of February 27, 1S97, was not a Anal decree. It did not, properly construed, direct to whom the proceeds of the sale were to be paid. Such proceeds were to be paid to the parties entitled, “and who they were the will pointed out.” It was for the court to determine this, upon the coming in of the report of sale. The effect sought to be given the words “interests of the defendants as shown in said petition,” can only be supported by the narrowest and most literal construction, and is not the reasonable construction. The entire petition, and the will, an exhibit to and part of it, must be looked to. The decree was interlocutory. It falls within the principle of Gilleylen v. Martin, 73 Miss., at pp. 700, 701.
Tt is clear that Isaac W. Rye and F. L. Rye and Paralee Studdard were not entitled to distribution. We see no ambiguity in the will. Its declaration is that children, or children of a deceased child taking for stirpes and not per capita, living at the death of the mother, the life tenant, should receive the proceeds of the sale of the land. It was perfectly competent to make such a will. Learned counsel for appellee ingeniously argue that to so construe the will violates the rule against per-petuities, saying that Elizabeth Rye and James Beeks, the grandchildren, had indefeasible vested estates, which descended, upon their deaths, to their heirs. This is the fallacy in counsel’s view. They had estates defeasible upon their dying before the life tenant died. Counsel mistake the quality of the estates they had .in this regard. Their defeasible estates being defeated by the fact of their deaths while the life tenant- lived, went to the other children and grandchildren, not being thus carried a step further than the rule against perpetuities would permit, but because the quality of their estates, being such as made them so defeasible, and the event having happened which made them determine, the said grandchildren dying in the lifetime of the life tenant, had nothing to transmit by descent or devise. What they had were vested interests, but defeasible as vested. The quality of defeasibility stamped on their estates by the will, attached to them in their hands. If they lived till the death of the life tenant, the interests became indefeasible; if not, their interests were determined at their deaths. The case of Dunlap v. Fant, 74 Miss., 197, is controlling against appellee.
Testator could make this sort of a will. We cannot make a will for him. We can only construe the one he has made, in the clear light of his intention, as disclosed by the whole will, looking to his environments.
Decree reversed and cause remanded for decree in accord-0,nee with this opinion.