64 Miss. 417 | Miss. | 1886
delivered the opinion of the court.
J. H. Bolen took as purchaser under the will of his father, Willoughby Bolen, and not as heir-at-law. As heir-at-law he would have taken an undivided interest with the widow of the testator and the other heirs-at-law. Code of 1880, § 1271. And this would have given him an estate in possession to be presently enjoyed. By the will the widow was given an estate for life in the whole land instead of a portion thereof in fee, and a remainder in the whole was limited to the heirs-at-law. The estate therefore given by the will is different both in character and in the subject-matter than would have passed by descent, and in such cases the heir-at-law takes under the will and not by descent. 4 Kent’s Com. 507.
The remainder limited by the testator to his heirs-at-law was vested and not contingent; those who were alive at the death of the testator took the estate and not those only who survived the tenant for life. King v. King, 1 Watts & Sergt. 205; Bentley v. Long, 1 Strobh. Eq. 43 ; Doe v. Provoost, 4 Johnson 61.
“ The law favors vested estates, and no remainder will be construed to be contingent which may, consistently with the intention, be deemed vested.” 4 Kent’s Com. 203.
The appellee by his purchase at the sale made by the administrator of J. H. Bolen acquired the interest of the intestate in the land and was entitled to partition as prayed. The decree must therefore be Affirmed,
