172 So. 500 | Miss. | 1937
Mrs. M.P. Henderson, a resident of Tupelo, Miss., died in January, 1929, leaving a last will and testament which was duly probated, and which disposed of her real estate in the city of Tupelo in the following manner:
"To my four children, Lillian, Georgia, Daisy and Frank I give my two store houses and lots on which they are located.
"I do not want them sold for a division without the written consent of the majority of the four heirs. I wish them to be rented out and managed as I have managed them.
"If any one of my children die without any children, I want his or her part to go to my children that are living, those living to share equally."
At the time of the execution of this will in the year 1929, Mrs. Henderson had only the four children who are named as devisees in the foregoing paragraphs of the will, and all of them survived their mother. In 1933, one of the devisees, Mrs. Georgia Eskridge, died without issue, leaving a will providing that the income from all her property should be paid to her husband, R.A. Eskridge, during his lifetime, and at his death, devising to her sisters, Mrs. Lillian Dicks and Mrs. Daisy Grissom, a life estate in said property, with remainder to the heirs of their bodies. The will of Mrs. Eskridge was probated and afterwards renounced by her husband, who then, as an heir at law of Mrs. Georgia Eskridge, deceased, filed the original bill of complaint herein, asserting an interest in fee in the real property devised under Mrs. Henderson's will. The complainant, R.A. Eskridge, died testate on the 7th day of April, 1936, and thereafter this cause was revived in the name of the executrix *114 of his will. Upon the hearing of the cause the court held that, under the provision of the will of Mrs. Henderson, upon the death of Mrs. Georgia Eskridge without issue, her interest in the devised property passed to the remaining surviving children of Mrs. Henderson, and from the decree dismissing the bill of complaint this appeal was prosecuted.
It is the contention of the appellant that the limitation over contained in the provision that "if any one of my children die without any children, I want his or her part to go to my children that are living, those living to share equally," took effect only in the event of the death of a devisee during the lifetime of the testatrix, and that since all the children of the testatrix survived her they took an absolute fee-simple title.
As stated in Sims v. Conger,
Section 2116, Code 1930, provides as follows: *115
"Every contingent limitation in any conveyance or will made to depend upon the dying of any person without heirs or heirs of the body, or without issue or issue of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted as a limitation, to take effect when such person shall die not having such heir, or issue, or child, or offspring, or descendant, or other relative, as the case may be, living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared on the face of the instrument creating it."
The provision of this statute that a contingent limitation in a will depending upon the dying of any person without issue, or issue of the body, or without children, etc., shall be interpreted as a limitation to take effect when such person shall die not having such heir, or issue, or child, has reference to the death of the devisee or legatee, and in the absence of an intention to the contrary expressly or plainly declared on the face of the will, appears to require that the limitation over be interpreted as taking effect on the death of one of the devisees without issue, at any time. Other language of the will, as well as circumstances at the time of its execution, supports the latter construction. At the time of the execution of the will the testatrix was seventy-five years old, and it would hardly be supposed that in providing for the disposition of her property she contemplated only the death of her children before her own. That the testatrix did not intend that the devise over should take effect only in case of death of the devisees before the death of the testatrix is further strongly indicated by her expressed wish in the will that the devised property should not be sold for division without the written consent of a majority of her four heirs, and that these heirs should rent and manage the property as she had done. These were directions to her children *116
who, if living, would become her heirs at law at her death, as to the management of her property after her death, and indicates an expectation and intention that the limitation over should take effect upon the death of any one of the devisees without issue, at any time, whether before or after the death of the testatrix. In the case of Britton v. Thornton,
We conclude, therefore, that under the will the four named devisees took a fee defeasible on their deaths without issue, leaving one or more of the other devisees surviving them. Armstrong v. Thomas,
Appellant assigns as error the failure of the court to hold that the will violates the rule against perpetuities, but she presents no argument in support of this view. Insofar as they affect the interest that passed upon the death of Mrs. Eskridge without issue, there can be no violation of the rule against perpetuities or of the *117 two donee statute, section 2765, Code 1906, which was in force at the time of the death of the testatrix. The decree of the court below will, therefore, be affirmed.
Affirmed.