Hawkins v. Hawkins

72 Miss. 749 | Miss. | 1895

Lead Opinion

Cooper, C. J.,

delivered the opinion of the court.

The appeal calls for the construction of a deed executed by C. M. Yaiden and Elizabeth, his wife, to his three nieces, Lizzie V. Hawkins, Alice Y. Herring and Sallie Cowles Herring. In consideration of natural love and affection, Mr. Yaiden conveyed to his said nieces a certain lot in the town of Yaiden, by the following terms: “We give to them, our said nieces, Lizzie Y. Hawkins, Alice V. Herring and Sallie Cowles Herring, said lot as described, with all appurtenances, emoluments and rents arising from the same during their natural lives, and at their death to the descendants of their bodies in fee, if any they may have, but if they have none to survive them, then, in that event, to the heirs of their brothers and sisters in fee. ’ ’ By statute it is provided: “All conveyances of lands made to two or more persons, shall be construed to create estates in common, and not in joint tenancy, unless it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint tenancy, with the right to the survivor or survivors; Provided, This provision shall not apply to mortgages or conveyances made in trust. ” Code 1871, § 2301; Code 1892, § 2141.

The chancellor was of opinion that, but for the statute, the conveyance under review would have given a joint estate for their lives to the nieces of the grantor, with remainder at the death of the survivor to the descendants of the life tenants. In this conclusion we entirely concur. Hungerford v. Anderson, 4 Day (Conn.), 368. We concur also in the conclusion that it does not sufficiently appear by the deed that the grantor intended to preserve the right of survivorship, to withdraw the conveyance from the operation of the statute.

But the chancellor erred as to .the effect of the statute upon the conveyance. It did not convert the estate for three lives into an estate for life only of the respective tenants in common. Each of the tenants in common remained, as before, a tenant for three lives — that is, for her own life, if she should survive her co-tenants, but for the life of the last survivor if they, or either of them, survived her. The statute does not cut down the estate of the tenants, but destroys the right of survivorship. At the death of Mrs. Sallie Hawkins, her estate then existing in the land passed to her heirs at law, instead of going by sur-vivorship to her co-tenants, as it would have done but for the statute. And, so, when Mrs. Lynch died, her life estate descended to her heir at law. When, and not until, the last life tenant shall die, the ulterior limitation will take effect, and the fee will pass under the deed. Until that event, the representatives of the life tenants hold their respective estates by descent.

Reversed and remanded.

---

Dissenting Opinion

Whitfield, J.,

delivered the following dissenting opinion:

This is not the case of a deed from the express terms of which — the express words used in it — the intention of the grantor can be clearly and plainly seen. If it were, of course, there would be nothing to do, save to declare and effectuate that plainly expressed intent. It is a marvel of obscurity. There are at least three views which may be taken of it, for all of which support more or less strong can be found. The first is, to hold that the deed creates a joint estate in the three daughters for the life of the longest liver of them, the said longest liver to take, by survivorship, the whole estate in lot 73 for her life, the period of ulterior limitation, on the accrual of which the remainder over is to take effect, being the death .of said longest liver, the intention -to create such joint tenancy being plainly declared, and the statute, therefore, not converting it into an estate in common. If this construction be adopted, Mrs. Sallie Hawkins’ interest in the life estate in lot 73, as also Mrs. Lynch’s interest in the same, went by survivorship to Mrs. Lizzie Hawkins, and the children of Mrs. Sallie Hawkins — the ‘ ‘ descendants, ’ ’ in the language of the deed — have no interest therein, but only an interest in the remainder in fee in lot 73, and that only upon the contingency that they survive Mrs. Lizzie Hawkins, who may live many years,, and are living at her death; and, if then living, they are to \sk& per capita, and not per stirpes, on this construction. If Mrs. Lizzie Hawkins should die leaving six children, and only one of Mrs. Sallie Hawkins’ children should -then be living, that child -would get one-seventh, and the six children of Mrs. Lizzie Hawkins six-sevenths, of an estate in which their mothers each had one-third. The grantor never intended such a result. .

Another view is, to hold that the deed creates what would be, at common law, such joint estate for the life of the longest liver of the three sisters — as first above set forth —but that the intention to do so is not so plainly declared as to bring the deed within the exception in our statute, and, hence, that statute converts it into an estate in common in said three daughters in lot 73, for the lifé of the longest liver of them, the period of ulterior limitation being as before — the death of said longest liver. On this construction, the interest in the life estate in lot 73 of Mrs. Lynch went, on her death, to her husband, and, on the death of Mrs. Lizzie Iiawkins, only those descendants of Mrs. Sallie Hawkins who may be then living can take, and must take, consequently, per capita. If anything can be plainly deduced from the deed, taken as a whole and not looked at piecemeal, it is that the grantor most certainly never intended that the husband of one of the sisters who should die childless, should take any interest in the life estate where sisters or descendants of sisters survived.

The third view is, that the deed creates the several estates in common, under the operation of the statute, giving to each daughter one undivided third interest for the life of each respectively, remainder in fee, upon the death of each respectively, to her ‘ ‘ descendants, ’ ’ the descendants, of course, taking par sti'ipes. On this constrution, the life estates in lot 73 expire with the lives of the daughters respectively. The descendants have no interest in any life estate. The whole life estate in lot 73 does not survive Mrs. Lizzie Hawkins, nor part of it (Mrs. Lynch’s third) go to her husband, and, if she should die before Mrs. Lizzie Hawkins, to his heirs or devisees. The children of Mrs. Sallie Hawkins, on her death, took their one-third interest in remainder in the fee of lot 73 — not, however, by descent as her heirs, but per formam doni, under the limitation in 'the deed; and, so, on Mrs. Lynch’s death, one-third interest in the remainder in fee in lot 73 went, under the limitation in the deed, one-half to the children of Mrs. Sallie Hawkins and one-half to the children of Mrs. Lizzie Hawkins. This half (one-sixth) going to the children of Mrs. Lizzie Hawkins, like the third interest in the remainder in lot 73 limited upon the death of Mrs. Lizzie Hawkins herself, upon and at her death, then, and not before, to the then living descendants of Mrs. Lizzie Hawkins. It was perfectly competent for the grantor, by deed, to provide that a third interest in remainder in the fee, in lot 73, upon the death of any daughter without issue, should vest in descendants of the other daughters living, at their deaths respectively. The deed, taken as a whole, may fairly be said to so provide, and the intention of the grantor deducible from it, to have been that. If so, the one-sixth interest in the remainder in fee in lot 73 limited over upon the death of Mrs. Lynch without issue, as well as the one-third interest in remainder in fee limited over after the death of Mrs. Lizzie Hawkins herself, vest in her descendants surviving her, upon her death. This removes the objection, otherwise existing to this construction, that said one-sixth interest would vest, on Mrs. Lynch’s death, in the-children of Mrs. Lizzie Hawkins living at that date, to the exclusion of after-born children. It may possibly be objected that, on this construction, if one of the daughters of Mrs. Sallie Hawkins should marry in the lifetime of Mrs. Lizzie Hawkins, and then die in her.lifetime, such daughter’s interest in the remainder in fee would go to her husband — while one of the daughters and her children survived. The objection is more fanciful than real. It is not at all probable that such contingency would arise. But the obvious answer, if it did, is that the grantor here in this deed, as nearly all grantors do, concerned himself merely with seeing that the remainder safely reached and vested in fee in the descendants of the three sisters living at their respective deaths; not attempting to control the-destination of the property beyond that.

Manifestly, the three sisters and their descendants were the objects of his bounty. Clearly, he did intend that no remainder in fee should go over to anyone beyond them, unless ‘ ‘ none ’ ’ of the descendants survived the daughters. This is the general scheme propounded by the deed, and this general scheme may be worked out of the very -words used in the deed if taken as a whole and one clause be construed with reference-to the others. We cannot look outside the express terms of the deed for the grantor’s intent; no more can we, in any just view, look to one clause, or two or more clauses only. The former cannot be done, for it adds to the deed; the latter-•cannot be done, for it subtracts from tbe deed. Tbe intent •of tbe grantor — that thing wbicb vitalizes tbe deed in every part — is to be read not in tbe light furnished by tbe shining of •each clause in tbe deed separately, but in tbe collected light focalized from all tbe clauses. Entertaining these views, I concur in tbe result reached by tbe learned chancellor. I regret my inability to concur with my brethren in tbe view taken by them, but this regret is softened by tbe reflection that, if in error, my views can work no injustice, since tbe opinion of tbe court is tbe law of tbe case.