Brown v. Alexander

79 So. 842 | Miss. | 1918

Smith, C. J.,

delivered the opinion of the court.

Appellant exhibited a bill in the court below, alleging that James H. Gardner died intestate, without legal heirs, seised and possessed of certain land, and praying that it he decreed to have escheated to the state. Defendants filed an answer and cross-hill, in which they alleged, in substance, that they were children born in lawful wedlock of .Mrs. ——• Gardner, deceased, and that James H. Gardner, deceased, was an illegitimate son of Mrs. Gardner, born after the death of her husband; that the land in controversy was purchased by James H. Gardner with money belonging to his mother, given to him for that purpose, with the understanding that the title should inure to her benefit and that he would execute her a deed thereto; that their mother lived with James H. Gardner on the land for a number of years prior to her death, and spent other money belonging to her in improving the property; that James H. Gardner failed to make his mother a deed to the land, and that he died two or three years after her death without- having made any disposition thereof; that by reason of these facts James Gardner held the title to the land in trust for his mother; and the prayer of the cross-bill is that appellees be decreed to be the sole heirs of their mother, and the legal owners of the land.

A demurrer was interposed to this cross-bill, and overruled, and, upon the appellant declining to plead further, a decree was entered for appellees in accordance with the prayer of their cross-bill. Under the allegations of the cross-bill, James H. Gardner held the land in trust for his mother, Mrs. - Gardner. Soggins v. Heard, 31 Miss. 426; Kelly v. Mills, 41 Miss. 267; Miazza v. Yerger, 53 Miss. 135; Robinson v. Leflore, 59 Miss. 148; Barton v. Magruder, 69 Miss. 462, 13 So. 839; Wilson v. Hoffman, 104 Miss. 743, 61 So. 699; Robinson v. Strauther, 106 Miss. 754, 64 So. 724. And at her death she had not lost her right thereto on account of any laches on her part. Comans v. Tapley, 101 Miss. 203, 57 So. 567, Ann. Cas. 1914B, 307. Upon her death the land descended to each of her three children in equal parts (section 1655, Code of 1906; section 1387, Hemingway’s Code), so that at his death James H. Gardner owned a one-third interest therein. James H. Gardner, however, died without legal heirs; counsel for appellees very properly admitting that section 1655, Code of 1906 (section 1387, Hemingway’s Code), does not provide for inheritance by legitimate from illegitimate children.

The demurrer of the cross-bill was properly overruled, but the decree of the court should have vested in appellees only a two-thirds interest in the land and the remaining one-third, of which James H. Gardner died seised and possessed, should have been awarded to the state; consequently the decree will be reversed, and a decree entered here in accordance with the foregoing views.

Reversed, and decree entered.