40 Miss. 161 | Miss. | 1866
delivered the opinion of the court.
The plaintiff in error presented a petition to the probate judge of Kemper county, under the eighth section of the thirty-sixth chapter of the Revised Code, relating to the position of lands among joint-tenants, etc., praying the appointment of commissioners to make partition of the land therein described. The petition stated that John McLaurin died March 16, 1856, leaving a will whereby he bequeathed the land in question to his wife, Margaret, for her natural life, and after her death to be equally divided among his six children, one of whom at the date of his will, and at the death of the testator, was the wife of the petitioner. That petitioner’s wife, early in 1857, gave birth to a child, who lived but a few days, and that the mother died soon after, and that the said Margaret, the devisee of the estate for life, died in May, 1861. Petitioner claims one-sixth of the land for his own life, as tenant by the courtesy.
The other parties in interest appeared before the judge of probate and filed a demurrer to the petition, which was sustained by the judge, and the petition dismissed, from which decision the petitioner prosecutes this appeal.
Three things necessary to create a tenancy by the courtesy exist in this case: marriage, the birth of issue, and the death of
In this case the interest of the wife was a vested remainder in fee, expectant upon a life estate in the widow of the testator. She died before the determination of the life estate, and therefore never acquired any right to the actual possession and enjoyment of the estate. In such a case the rule is clearly stated by Chancellor Kent: “ But if there be any outstanding estate for life, the husband cannot be tenant by the courtesy of the wife’s estate in remainder or reversion, unless the particular estate be ended during the coverture.” 4 Kent (29). To the same point is the case of Gentry v. Wagstaff, 3 Dev. N. C. R. 270. Sir William Blackstone says: “ A man shall not be tenant by the courtesy of a remainder or reversion.” 2 Black. 127. But this proposition is restricted by the later authorities to eases of remainders or reversions expectant upon estates of freehold ; and upon a reversion expectant upon an estate for years, the right of courtesy and dower both accrue, for the reason that the possession of the tenant for years constitutes a legal seisin of the freehold in reversion. Stoughton v. Leigh, 1 Taunton, 410; De Gray v. Richardson, 3 Atkins, 470; Goodtitle v. Newman, 3 Wilson, 521.
The wife of petitioner not having been seized of the land in