1 So. 2d 160 | Miss. | 1941
Ned Boxley died in Coahoma county, Mississippi, December *138 1, 1920, leaving a last will and testament, dated August 21, 1920, which was duly probated in that county. The will contained this provision:
"I give and devise to my son, David Boxley, an undivided one-half part, share and portion of and in that certain tract or parcel of land lying and being situate in the county of Coahoma, state of Mississippi, to-wit: `The Southeast quarter of the southwest quarter (SE I/4 of SW I/4) of Section Eleven (11), Township Twenty-six (26), Range Three (3) West, to be used and enjoyed by him during the term of his natural life, and immediately after his decease I give and devise said part, share and portion of and in said land to the heirs of the body of my said son in fee simple.'"
It contained a like devise to Nash Boxley, appellant, and nominated Nash as executor without bond, without necessity of reporting to court. These were the only provisions in the will, and it appears that Nash and David were his only children.
David Boxley departed this life in Coahoma county in 1938, having had no bodily heir after the execution of this will.
The question presented on this appeal is the construction of the foregoing devise to David. Appellant is the only heir at law of Ned Boxley, and he claims that since David had no heir of the body, the remainder to such heirs became a lapsed devise on the death of David and reverted to the heirs of Ned Boxley, and, therefore, that he, Nash, is now the owner in fee simple, as such heir, of the interest in the lands devised to the bodily heirs of David. Appellee claims that David Boxley was vested with a fee simple title to such remainder, and that she is now the owner thereof, being one of the heirs, and a grantee in a deed from the other heirs at law of one Della Boxley, who died in 1939, claiming to be the common law wife of David Boxley, and his only heir at law.
The lower court was presented with two questions; first, the construction of the devise to David Boxley; and, *139 second, whether Della was the common-law wife of David and entitled to inherit from him as his only heir at law. The Chancellor first decided that the provision in the devise to David vested in David only a life estate; and David having no heirs of the body, the remainder became a lapsed devise and reverted to appellant as the only heir at law of Ned Boxley; also, that Della was not the legal common-law wife of David, and could not inherit from him. On motion to set aside that decree, and on reargument to, and reconsideration by, the Chancellor, he reversed both of these holdings and held in favor of appellee. It is from this decree that appellant appeals.
Our conclusion upon the meaning and effect of this devise renders it unnecessary for us to pass upon whether Della Boxley was the heir at law of David Boxley.
The theory underlying the claim of appellee that this devise vested in David Boxley a fee simple title is not clear. In the argument mention is made of the rule in Shelley's case, the Mississippi estate tail statute, section 2117, Code of 1930, and the rule against perpetuities. There is involved here no perpetuity, so we will consider the rule in Shelley's case. It is not necessary for us to enlist in the war which has raged about this rule since it was announced, either in the ranks of those who think it is the acme of wisdom, executing perfectly the will of the donor, or those who consider it absurd, unjust, arbitrary, defeating the will of the donor, an unblessed heritage of feudal customs, or those who, like Goldsmith's village parson, come to scoff and remain to pray. The rule was abolished by section 2114, Code of 1930, which is in these words:
"A conveyance or devise of land or other property to any person for life, with remainder to his heirs or heirs of his body, shall be held to create an estate for life in such person, with remainder to his heirs or heirs of his body, who shall take as purchasers, by virtue of the remainder so limited to them."
If the wording of this devise brings it within this rule, *140 then under the common-law construction David was vested with an estate as long as he had bodily heirs through succeeding generations. But under said section 2114 David would be vested only with a life estate, remainder to his bodily heirs, in default of which the remainder would lapse and revert to the donor, Ned Boxley, or his heirs. The wording of this devise would bring it within that rule unless the added words, "in fee simple," prevent it, which we consider later. A devise to A for life, remainder to the heirs of his body, was typical of an estate within the rule in Shelley's case. The express life, and according to most authorities, the express remainder, distinguish this from the usual common law entailed estate. It will be noted that section 2114 is directed to that wording. A typical common-law entailed estate, not under the rule in Shelley's case, would be to A and the heirs of his body. This was an entailed estate, not by the rule in Shelley's case, but because of its nature. It is this latter kind of estate which is covered by section 2117, Code of 1930, reading:
"Estates in fee tail are prohibited; and every estate which, but for this statute, would be an estate in fee tail, shall be an estate in fee simple; but any person may make a conveyance or a devise of lands to a succession of donees then living, and upon the death of the last of said successors to any person or any heir."
As further illustrating this difference and the construction this Court has placed upon devises of the kind here considered since the rule in Shelley's case was abolished by section 1201, Code of 1880, consider these Mississippi cases:
In Wallace v. Wallace,
In Bolton v. Barnett,
In Liberty Bank v. Wilson et al.,
In Stigler et al. v. Shurlds et al.,
In Balfour v. Wells et al.,
In Federal Land Bank v. Newsom,
But in our view the words, "in fee simple," added to the remainder provision in the case under consideration, prevent this being an entailed estate. In Shelley's case the Court said the words, "heirs of the body" (including both Shelley and his wife), described the estate of the first taker. The Court used the word "limitation," which has been the judicial misnomer of all time. That is, these words described or defined that the estate vested in the first takers was an estate to continue and extend as long as the first taker had heirs in a direct line of descent, that is, to son, grandson, great-grandson, and so forth, from generation to generation, "so long as there exists issue of the prescribed class; so long as there is, as it were, a stream flowing from the fountain." 24 R.C.L. 892; Thompson, supra, Vol. 2, 453; Note 29 L.R.A. (N.S.) 992. But these words being descriptive of Shelley's estate, the heirs took nothing by virtue of the conveyance, whatever estate they had came through Shelley by inheritance. True it is that actually, even at common law, entailed estates seldom continued through the generations, because of the fictitious court proceeding of common law recovery, thereby barring the entail. Thompson, vol. 2, p. 454, supra. But this did not affect the meaning. However, the authorities agree that if the donor uses other words conveying different meaning, the estate tail is not created. Irvine v. Newlin,
It is a cardinal principle that the intention of the testator, when ascertained, controls unless invalid under the law. Scott v. Turner,
It is clear that Ned Boxley intended to devise to his son David a life estate, with remainder after his death to the heirs of his body in fee simple, should he have such heirs. He had no such heirs, and this devise lapsed and reverted to the heirs of the donor, Ned Boxley, who in this case is the appellant.
Reversed and judgment here for appellant.