84 So. 186 | Miss. | 1920
delivered the opinion of the court.
The appellants filed an ejectment suit against the appellee for certain lands, and the case was tried before the circuit judge without a jury, who found in favor of the defendant, from which judgment this cause was appealed here.
The plaintiffs, appellants here, relied upon the will of one A. L. Street, who died in 1892, leaving two daughters, Minnie May Street, afterwards Mrs. Jones, and Bessie Gray Street, afterwards Mrs. Penick. Mrs. Minnie May Jones in her lifetime deeded the property in suit to the appellee. The alleged will is in the following language:
“This my last will and testament made this twenty-sixth day of June, 18901, being of sound mind do make and bequeath all my' property as follows: That none of my land shall be sold, but rented for the best interest of all concerned, and out of the rents of said land my* children, Minnie May Street and Bessie Gray Street,
It is the contention of the appellants that they took as purchasers under the will, or writing, above set out, while it is the contention of the appellee that th/> will does not dispose of the fee, but that the two daughters of Street took the fee by inheritance. A critical examination of the instrument shows that the only language in this instrument by which any interest in the land is expressly devised is the following:
“And I further bequeath that should either of the above children die without issue the other child or her
In the agreed statement of facts in the record it is admitted that both Mrs. Jones and Mrs. Penick left children living at their respective deaths; therefore the provision just referred to never came into operation, because the contingency never happened. The allege'1 will does not, in terms, convey a life estate to any person, and does not convey the fee to any person, except on the happening of a condition which failed to happen at all.
It cannot be said that there was a life estate in either of the daughters, for they were expressly given an annuity of two hundred dollars per annum, with a provision that this annuity should be increased under certain conditions mentioned in the alleged will, and that they should have the option or privilege of living upon and renting the land. It cannot be said that a life estate was vested in Mrs. McC'orkle, for she was the executor charged with renting the land, and had no kind of interest or use in the land save as executor, and the executor-ship was intended to extend beyond her life, for she was given power to appoint her successor. The provision in the will'1 ‘ that none of my land shall be sold, but rented for the best interest of all concerned,” does not carry an idea of limitation as to time, and could not be construed as being a limitation only for the life of one or more persons.
In order for a will to be effective in vesting the fee, it must contain sufficient language, and a sufficient purpose obtainable from its language, to dispose of the fee, or else the heirs of the testator will take the fee by in
We think the instrument before us is wholly insufficient to devise the fee from the maker into the grandchildren, and that it is insufficient to create a life estate for the two daughters. Appellants rely strongly upon Ball v. Phelan, 94 Miss. 316, 49 So. 956, 23 L. R. A. (N. S.) 895, but in that case the life estates'were created in express terms in the clearest manner, and it was perfectly manifest that the testator did not intend to vest 'the fee in the life tenants, but did intend to vest it in the remaindermen, and it is easily distinguishable from the present case.
It would serve no useful purpose to comment upon rules of construction as to wills, because the law upon that subject has been announced over and over. < think the court below was correct in its decision, and the judgment will be affirmed.
Affirmed.
