30 Miss. 533 | Miss. | 1855
delivered the opinion of the court.
This was a bill originally filed in the Yice Chancery court, at Columbus, by the appellants against the appellee.
The object of the suit was the recovery of a number of slaves, to which the complainants allege title, in virtue of a deed of trust, which was executed by John Thurman, in Morgan county, Alabama, on the 18th of October, 1831. The complainants claim the property in controversy, in the character of heirs at law and next of kin of the said Thurman, at the death of Mrs. McLaran, who, it is averred, possessed a life interest in the said slaves.
It appears, from the allegations of the bill, that the appellee, in 1832, intermarried with Eliza Thurman, the daughter and only child of the said John Thurman, who had previously executed the deed above referred to. By that instrument, the slaves (which, with their increase, is the subject of this controversy,) were conveyed to Isaac Lane, in trust for the use of the said Eliza Thurman, then a minor. The property conveyed was to remain in the
It appears, further, that the deed of trust was duly executed and delivered to Lane, the trustee, who assumed the execution of the trust duties imposed thereby; that upon the marriage of the appellee with Eliza Thurman, they were placed in possession of the slaves embraced in the deed; that they removed from the state of Alabama — where they were both domiciled at the time of the marriage — to Mississippi; having had continual possession of the slaves from the time of their delivery up to the death of the said Eliza, which occurred in 1856, in this state.
It also appears, that Thurman died intestate, in 1838, in Alabama, leaving the wife of the appellee his only child, and heir at law. That appellee administered upon his estate, the debts of which were all paid, and the property distributed between the widow of Thurman, who is still living, and the said Eliza; but that the slaves conveyed in trust to Lane, were neither inventoried as the property of the decedent’s estate, nor included in the distribution; and that the wife of the appellee died without issue living at the time of her death.
The appellants are the collateral relations of the said John Thurman, being the descendants of his brothers and sisters, who were living at the time of his death.
We have, above, stated concisely the facts of the case, out of which arise the only questions which it is deemed necessary to examine.
According to elementary writers, there are four classes of contingent remainders. The first is, where the remainder depends entirely upon a contingent determination of the precedent estate itself. The second is, where some uncertain event, unconnected
There are some exceptions, recognized by all the books, to this last sort of contingent remainders. One of these, it is said, grows out of the rule in Shelly’s case. Another depends upon the principle, which we will have occasion again to advert to, that an ultimate limitation to the “right heirs,” or “ lawful heirs” of the grantor will continue in him, as his old reversion, and not vest as a remainder, although the freehold be expressly limited away from him. And a third exception grows out of the respect which the law pays to the intention of the testator, and is recognized in cases, in which it can be plainly collected from his will, that he used the word “heir,” not as a word of limitation, but as descriptio persones. Hilliard, Ab. 367; Lomax, Dig. 413, 414.
Anciently, at common law, a remainder could not be limited upon a chattel, the title to which was regarded as incapable of a division into successive interests. And hence the transfer of a chattel personal to one for life, or even for a moment of time, passed the title to him absolutely. 2 Kent, Com. 352; Price v. Price, 5 Alabama, R. 581; Keyes, Chat. 13, 14. This principle has long since been departed from by the courts in England, and in this country and it is now generally conceded, that limitations of special interests in chattels personal, whether they be made by deed or will, are valid. Mosley v. Bradley, 3 Call, 50; London v. Toomer, 11 Leigh, 405; Keyes, Chat. 14. Such is, we take it, the rule in the State of Alabama, where the rights of the parties to this controversy accrued, and by whose laws they must be determined.
It is evident, that under the statute of Alabama, abolishing entailments, an estate tail could not be created in chattels. Aikin, Dig. 95, § 40. Another exception is, that an interest similar to a fee conditional cannot be created in them. The reason assigned for the rule is, that anciently a gift of chattels personal to a person was an absolute gift; the words “heirs,” or “heirs of his body,” or “executors and administrators,” had no effect whatever upon the quantity of interest; nor was the quantity of interest affected by the use of restrictive expressions, as “ for life,” or “for years.” So that when the ancient doctrine in regard to chattels personal was departed from, and partial interests in them were permitted to be created, the courts would not allow that the words, “heirs of the body,” was a restriction upon a gift which was, and still is, an absolute oye, in all cases, unless it be restricted ; for the reason that as chattels personal generally do not descend, the heir or heirs of the body could not take, and hence the words were simply nugatory. Fearne, Rem. 468; Keyes, Chat. 32.
Chattels personal being essentially, as it is said, the subject of absolute property, upon their transfer to one for life he at once became entitled to the whole, and the common law knew nothing of a reversion remaining in the assignor. But courts of law and equity having recognized the validity of limitations, by which partial interests in personal chattels were created, were, of necessity, compelled to recognize reversionary interests, to the extent that they acknowledged the existence of partial interests. Having admitted the right to bequeath a life estate in chattels, they were compelled to recognize the right to limit a remainder.
And the courts generally, concur in laying down the rule, that reversionary interests, or quasi reversions of personal chattels exist in all cases, both in law an equity, where partial interests alone are created in them; and in all cases in which partial interests are created, with limitations over which fail to take effect, or which are void ab initio, or which become void; except in those eases in
Let us apply this principle to the case at bar, and, if it were conceded that the limitation over to his lawful heirs contained in Thurman’s deed, conveying the slaves in trust to Lane for the use of his daughter Eliza, was valid, it will not be controverted that a reversionary interest remained in the donor. For, if the donee, who took a life interest in the proceeds of the slaves, died without issue living at the time of her death, before the donor, the limitation would have failed to take effect, for the obvious reason, no one could lay claim to the remainder in the character of heirs of the donor, who was still living.
But Thurman died before the donee; who, as we have seen, left no child or children living at the time of her death; consequently, the limitation over to Thurman’s lawful heirs, if valid, took effect, and vested the remainder in them. This raises the question of the validity of the limitation over.
It is a settled maxim of the common law, that a man cannot make a conveyance of real property to his heirs. Hence, it is uniformly held, that an ultimate remainder, limited to the right heirs of the grantor, is void, and that although the freehold be expressly limited away from him, it will continue in him, as his old reversion and not as a remainder. The heirs will take by decent, and not by purchase, because foftior et potentior est dispositio legis quarn hominis. Eearne on Bemainders, 49, 50, 51, 52, 67; 1 Preston on Estates, 290, 291; Godolphin v. Abbingdon, 2 Atkins, 56; Cholmondely v. Maxcy, 12 East, 589; 1 Hill, Ab. 199, § 28; 367, § 31; 419, § 8; 1 Tucker, Com. 135, 138, 139, 140.
Heirs, in their character as such, do not succeed to the chattels personal of the ancestor, in virtue of the title by descent. They vest in the administrator, as assets for the payment of debts, and
And for this reason it is laid down, that a remainder in personal chattels must be limited to a person capable of taking it by purchase, or it will be void. Thus, if A. by deed convey a chattel personal to one for the life of A.; remainder to the “next of kin,” “ distributees,” or the relations of A., a reversionary interest remains in A., and upon his death the property passes by representation and not by purchase. Keyes, Chat. 230.
So, where one bequeaths his personal property to those entitled under the statute of distributions generally, and not specially, they take by representation, and not under the testament, nor by purchase, Keyes, Chat. 230; Masters v. Harper, 4 Brown, Ch. Rep. 207; Lowndes v. Stone, 4 Ves. 649; Powell v. Brown, 1 Bailey, 100; Holloway v. Holloway, 5 Ves. 399.
In the case of Ladings v. Ladings, 10 Ala. 203; it was said by the Supreme Court of Alabama, that “when the term ‘heir,’ is used in connection with the personal estate only, there is no conflict in the cases, that it is to receive the construction of ‘ next of kin.’ This term, used solely in this connection, seems to be precisely equivalent to legal representatives, and the cases are numerous where this is held to mean next of kin, and these take under the will, as under the Statute of Distributions.”
This case settles the rule of construction in Alabama; and it is unquestionally settled in accordance with the uniform decisions on the subject.
According to this principle, the stipulation in the deed, by which, in the event of Mrs. M cLaran’s death, without issue living, the property was to return to the lawful heirs of Thurman, must be construed as a limitation to his next of kin, legal representatives, or distributees; unless it is apparent, from the instrument itself, that the word “ heirs” was not used in its legal and technical acceptation, but in a restricted sense, descriptive of the persons, who as indi
Upon this point it is insisted, that it could not have been Thurman’s intention to include the donee, by the words “lawful heirs;” and that the intent to exclude her, is manifest from the very terms of the instrument, as by its express provisions, the limitation in favor of the heirs of the donor could not, by any possibility, take effect until after the death of the donee, his only child, without issue living at the time of her death.
‘ The argument is not without plausibility; and if there was any part of the instrument, or any associated word or phrase, which, in the slightest degree, authorized the inference that the donor used the words “lawful heirs” in a restricted sense, and thereby intended to exclude the present object of his generosity, beside .the gift of the property to her for life, and her children after-wards, if there should be any, it might possibly be conclusive; but there is nothing in the instrument, except the limitation for the use of the donee and her issue, which, as it is truly said, must terminate by her death and the failure of issue, before the remainder to the heirs could vest, which, upon any principle, would warrant this court in placing upon these words in the deed, a different interpretation from that which the law has affixed to them.
We cannot indulge in any hypothesis as to the intention of the donor. We can only know that intention, by referring to the language which he has employed, and to those associated circumstances which the law has declared shall indicate his wishes. The terms “lawful heirs,” “right heirs,” and “heirs,” are synonymous: their signification is fixed by the law; and when they are used in a deed or will, without any superadded words or phrases, indicating a different meaning, they are always understood to be used according to their legal acceptation. The deed contains no evidence upon its face, that Thurman used the term “ lawful heirs” without a distinct knowledge of its legal import. In fact, if any inference could be legitimately drawn, *a contrary one would arise, from the appropriate manner in which the terms “child,” or ^children,”
We cannot doubt, therefore, that the words “lawful heirs” of the donor, should not be understood as descriptive of particular persons, who were intended to take as individuals, and therefore as words of purchase, but as designating the entire stock of heirs who would be entitled to succeed as the next of kin, or distribu-tees, to the personal estate of the donor; and hence as words of limitation.
The result necessarily follows, from the principles above laid down, that the limitation to the heirs of the donor was void, and consequently the property vested absolutely in the donee, who, it is admitted by counsel for the appellants, held a life interest in the property.
But if it were conceded that the property conveyed by the deed did not vest absolutely in Mrs. McLaran, the limitation to the “ lawful heirs” of Thurman being void, he retained, under the operation of the deed, a reversionary interest; that is, a possibility of reverter, which, upon his death, vested in his legal representatives.
It is manifest that this concession could not aid the appellants, as it is settled, that the limitation of a life estate to the donee, could not prevent her from taking by distribution, as the heir at law of the donor, and his next of kin.
In the case of Holloway v. Holloway, 5 Ves. 399, £65,000 were bequeathed for the use of the testator’s daughter for life; and after her death, to such child or children as she should leave at her decease, in such shares as she should think proper; and in case she should die, leaving no child, then, as to ¿61,000, part of the bequest in trust for the executors, &c., of the daughter; and as for the remainder of the bequest, in trust for such person or persons as should be the heir or heirs at law of the testator; it was held, that the ¿64,000 vested in the legatee and the two other daughters of the testator, who were co-heiresses at law of the testator, and next of kin at his death.
In this case, it was said by the Master of the Rolls, if a life estate was devised to one, and after his death to the right heirs of
The intervention of the trustee in this case, could have no effect upon the question. He was not appointed to preserve the contingent remainder limited to the heirs at law of the donor; for in no event were they to take an equitable estate: but under the limitation, they would have been entitled to the legal fee in the property.
Upon this view of the subject, when Thurman died, his rever-sionary interest vested in his legal representatives. Mrs. McLa-ran, who survived him, as his heir at law and next of kin, was, with the widow, entitled to distribution upon his estate. Hence, it is perfectly immaterial to the appellants, whether the appellee became entitled to Thurman’s reversionary interest, or whether it belonged to his wife, as her separate estate; as they claim as the heirs of Thurman, and not of Mrs. McLaran; in virtue of the limitation to them contained in the deed.
There is another view of the subject, equally fatal to the title insisted on by the appellants.
They claim as the heirs of John Thurman, and in virtue of the limitation contained in the deed. To make good their title, it is essential that they should show that they stand in that relation to Thurman. They are the lineal descendants, the children and grandchildren of his brothers and sisters, who were living at the time of his death, which occurred in 1838. To determine who are the heirs of Thurman, we must ascertain the persons who were entitled to distribution of his estate, as next of kin. Eor the term “heirs,” as used in the deed, is precisely equivalent to next of kin; and the next of lcin could only be ascertainable at the time of the intestate’s death, as it is precisely at that point of time that their rights as such become as much fixed as the right of the heir is by the common law, upon the death of the ancestor. This rule is uniformly held by the courts. 2 Prest. Est. 37; 2
It is evident, therefore, that appellants were not the heirs of Thurman; or — which is something, as to the question before us— were not the persons who, as next of kin, were entitled to distribution on his estate. It is equally clear, that they were neither the heirs nor distributees of Mrs. McLaran, who died in 1850; (although, if Thurman had ’ died intestate, without issue, they might have been entitled, as his next of kin;) as her husband, the appellee, and her mother survived her.
We close our investigation of this case, with this examination of a part of the questions which have been learnedly and ingeniously discussed by counsel. And believing that there was no error in the decree of the vice-chancellor, we order it to be affirmed.
