Brinson v. Sandifer, 42 So. 89

Brinson v. Sandifer

42 So. 89 | Miss. | 1907

Caei-ioon, T.,

delivered the opinion of the court.

T. C. Gatlin owned the land in controversy, and executed, his wife joining, an instrument in which he says: “I hereby *43grant, bargain, sell, convey and warrant to Mrs. S. E. Gatlin [his wife] her lifetime the following described property [describing the land], and at the end of Mrs. S. E. Gatlin’s life I will this property to Mrs. Sarah Elizabeth Brinson [a daughter] all of her lifetime, and after her, Sarah Elizabeth Brinson’s, lifetime said described property goes to her children and their heirs and assigns, forever.” Mr. Gatlin died, and subsequently Mrs. Gatlin, the wife, died, and the children, except Mrs. Brinson and one other, file this bill for partition as heirs. Mrs. Brinson defends as sole owner under the above instrument for her life. The court below refused her contention and decreed the partition.

The purpose of the paper was manifestly to convey the property, and the use of .the words “I will” at its conclusion does not destroy it as a conveyance. It is not attested as a will, and therefore void as such. It is acknowledged as a deed, eo nomine. The first part has the conveying clauses, and we decline to vitiate it as a conveyance and destroy the clear intent by making it a hybrid, half deed and half will, because of the misuse of a technical word. Clearly it passed immediate title, and was not intended to take effect after death. This instrument is within the exception allowed in sec. 2436, Ann. Code 1892. It is a conveyance to a “succession of donees then living and to the heirs of the body of the remainderman.” It gives the property to Mrs. Gatlin for life, then to Mrs. Brinson for life, then to her children, who are the heirs of her body, in fee. Banking Co. v. Field, 84 Miss., 647, 37 South. 139.

Reversed, and decree here dismissing the hill.