54 So. 445 | Miss. | 1910
delivered the opinion of the court.
A brief statement of the case is about as follows: Some time in 1900 D. A. James executed a will, leaving many legacies and devises to various persons. Later Mr. James died, and this controversy is as to whether or not the residuary devisees take a certain lot in Yazoo, City, or whether this lot goes to the heir as property undisposed of by the terms of the will. The facts in relation to this lot are about as follows: At the date of the death of Mr. James his will made provision for his wife and also his only child, and, after making many other specific legacies and devises to various other par
We think the case is settled by the case of Morris v. Henderson, 37 Miss. 492, and also by the case of Barton v. King, 41 Miss. 288. In the first of the above cases the court expressly states the rule to be followed in this state, and says: “If the real estate ‘be specifically devised,. and the devise does not take effect, either from the incompetency of the devisee to take, from a partial revocation of the will, a lapse by the death of the devisee in the lifetime of the testator, or from the contingency not happening upon which, as a condition precedent, the devise was made, or was to take effect, it descends to the heir, as property undisposed of by the will,’ and does not go to the residuary devisee under the general residuary clause, James v. James, 4 Paige (N. Y.) 117. But
We have no hesitancy in reannouncing the above rule already declared by this court as the one to govern in this •state, and amply supported by authority from many states, as an examination of the authorities cited in section 2175, vol. 49, of the Century Digest will show.
Affirmed.