Dunlap v. Fant

74 Miss. 197 | Miss. | 1896

Cooper, C. J.,

delivered the opinion of the court.

By reading the whole will of Conner, it appears that the following disposition was made of his real estate: (1) A life estate was given to his wife, Rosanna. (2) On the death of the tenant for life the fee was given to such of his children as should then be alive, but if any child should have died leaving children, such children should take the part the parent would have taken if alive. But the estate should not be divided so as to break up the domestic establishment (a farm)’ until the daughter, Mary A. E. Conner, should arrive at the age of twenty-one or marry.

The children of the testator took vested remainders in fee, for they were in being, capable of taking, if at any time the particular estate should determine, and the estates to which they were entitled might be of indefinite duration. But this fee was subject to defeasance by the death of any remainder-man during the life of the tenant for life. If a remainderman died leaving no descendants, his estate, at the death of the life tenant, passed to his brothers or sisters or their descendants; if he died leaving children — i. e., descendants — who survived the life tenant, the estate was limited over to such descendants. In such case the descendants took not the estate of their parent by descent, but they -took a new estate as purchasers, limitees under the will of Andrew Conner.

The rule of the common law is that wherever the heir at law of the devisor would take the same estate in quality under the will as he would take by descent without it, the devise is void, and he takes by descent. It is said that this rule was originally adopted into the law, first, for the benefit of the lord, to preserve the tenure and entitle him to the fruits of it; secondly, for that of creditors and others having demands on the ancestor’s estate, and, in some instances, for the advantage of the heir himself, as it would toll a right of entry, or entitle him to the benefit of a warranty.

The rule seems to have prevailed though the estate given to the heir was charged with debts, or was preceded by a life estate to another, or though the estate given to the heir was subject to a condition or defeasance. Moe v. Timins, 1 Barn. & Ald., 532; Maribridge v. Plummer, 2 Mylne & Keene, 23; Ellis v. Page, 7 Cush. (Mass.), 161.

Mr. Crosby gives as a test, to strike from the will the devise to the heir, and then consider whether he would take by descent the same estate. If he does, the devise is void. 4 Kent, 507. But you may not strike from the will other distinct provisions, limitations, or charges, merely because they are connected with, related to, or dependent on, the estate attempted to be devised, for, though they do not operate as an alterative of the estate, they bind the estate, whether it be taken by devise or descent.

The appellant invokes this rule of the common law as destructive not only of the devise to his children by Conner, but also as nullifying the ulterior limitation to the children of such of the remaindermen as should die during the life of the tenant for life. Counsel argue that the appellees were the heirs at law of Conner when the death of the life tenant occurred; that both the devise to his heirs at law (those who were such at his death) and that to their descendants, if they should die during the life of the widow, the life tenant, were void, because they gave precisely the same estate which would have descended. The error lies in considering these ulterior limitees as heirs in any sense of Conner. They were not his heirs at all, for if he had made no will they would have taken nothing by descent. The fact that Mrs. Cavett, the mother of the appellees, died before the life tenant, and that appellees, but for the will, would have inherited whatever interest she then had, does not show that they would have taken by descent this or any other interest upon the death of Conner intestate.

Mrs. Cavett, as we have said, took a defeasible fee in remainder, but it was divested by her death during the life of Mrs. Conner, and the appellees took as purchasers under the will, and not by descent. Mrs. Dunlap, by her purchase, got only the estate which Mrs. Cavett had, and that ended at her death. Ebey v. Adams, 135 Ill., 80.

The execution sale of the interest of Emmett Cavett failed of effect, for the reason that the matter was not dealt with in the manner directed by law. Where sales of land are made under judgment from a justice of the peace, the title is not complete until a certified transcript of the proceedings had before the justice is filed with the conveyance made by the officer in the proper chancery clerk’s office. Code 1880, § 2211; code 1892, § 3499.

The decree is affirmed.