| Miss. | Mar 15, 1904
Lead Opinion
delivered the opinion of the court.
The chief question for solution is, Is the limitation over of the ultimate fee to J. Harris Field, Sr., by the deed of August 30, 1890, valid ? That deéd is as follows:
“This deed of conveyance, made and executed at Florence, Ala., on this 30th day of August, 1890, by and between Eldon C. Field, hereinafter designated as the first party, and J. Harris Field, Bate Field, and J. Harris Field, Jr., hereinafter designated as the second parties, witnesseth: That the first party, for and. in consideration of the natural love and affection which he has for the second parties (his brother, niece, and nephew), does hereby bargain, sell, and convey to the said J. Harris Field, in trust for the said Bate Field and J. Harris, Jr., the following lands: [Here follows a description of the four plantations in controversy.] To have and to hold the said lands, with all and singular the appurtenances thereunto belonging, unto the said J. Harris Field as trustee as aforesaid, upon the trusts and conditions as herein provided — that is to say:
“2. That on the death of the first party, the said J. Harris Field, as trustee aforesaid, shall take possession of all of said lands, and shall manage and control the same during his natural life, and shall receive for his services as such trustee one-third of the rents, incomes, and profits of said lands. During the minority of the said Bate Field and the said J. Harris Field, Jr., the said trustee shall use the remaining two-thirds of the rents, incomes, and profits of the lands for their maintenance, support, and education, or he may hold, use, or invest the same as he may deem fit for their interest, and he shall not be liable for any loss that may occur in the management and control of said trust property or of the rents, incomes, and profits thereof, it being the intention of this deed to give said trustee large powers and discretion. The said trustee, J. Harris Field, after the death of the first party, may, if he deems it advisable, sell or .exchange said lands or any part thereof, and, in case of sale, shall reinvest the proceeds in other property, which, together with any property received in exchange for said lands or any part thereof, shall be held subject to all trusts and conditions and terms of this deed as fully as if incorporated herein, and he shall have like authority and powers as to the property received in exchange and the property in which the reinvestment is made; and it is hereby expressly provided that purchasers from said trustee shall not be chargeable with seeing to the application of the purchase price received by said trustee for any property sold or exchanged, it being the intention hereof to give said trustee as full power and authority in making sales and conveyances as if he were the owner of the property.
“4. Should the said Bate Field or J. Harris Field, Jr., die without issue of the body, the whole property herein conveyed shall vest in the survivor, subject to the rights of the said J. Harris Field hereinbefore mentioned; and in case both shall die without issue of their bodies, the whole property shall vest absolutely in the said J. Harris Field or his heirs at law if he be then dead.
“Given under my hand and seal this day and year above written.
“Eldon C. Field.
“Attest: Chas. O. Rolfe.”
(Acknowledged August 30, 1890, and filed for record September 3, 1890.)
The statutes which bear upon this question are as follows:
Rev. Code 1880, § 1189: “Every estate in lands, granted, conveyed, or devised, although the words deemed necessary by the common law to transfer an estate of inheritance be not added, shall be deemed a fee simple, if a less estate be not limited by express words, or unless it shall clearly appear, from the conveyance or will, that a less estate was intended to be passed thereby.”
Rev. Code 1880, § 1201: “A conveyance or devise of land or other property to any person for life, with remainder to his heirs or heirs of his body, shall be held to create an estate for life in such person, with remainder to his heirs or heirs of his body, who shall take as purchasers, by virtue of the remainder, so limited to them.”
Rev. Code 1880, § 1203: “Every contingent limitation, in any conveyance or will, made to depend upon the dying of any person, without heirs, or heirs of the body, or without issue, or issue of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted as a limitation to take effect when such person shall die not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared on the face of the instrument creating it.”
Rev. Code 1880, § 1197: “All conveyances or devises of lands made to two or more persons, or to a husband and wife, shall be construed to create estates in common, and not in joint tenancy or entirety, 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 devises or conveyances made in trust.”
It is clear that Eldon C. Eield excepted from and reserved out of the operation of this deed a legal life estate for himself,
It will not be out of place just here to look a little into the history and reason of this § 1203, Rev. Code 1880. The old construction defeated the intention in this way: Take a case: A. devises Blackacre to B. and the heirs of his body, and, if B. dies without issue (etc.), over to C. and his heirs. The intention of the devisor is to create an estate tail, and he meant the property to go to the heirs of B.’s body as long as there were any. The construction put on the words “die without issue” by the courts was in the line of this intention — to wit, that they meant not only issue of B. living at B.’s death, but any issue of B. — grandsons, great-grandsons, etc.- — as long as any descendants of B. were living; and hence that there were two contingencies, on the happening of either of which the limitation to C. should take effect — to wit, failure of B.’s issue
Again, in the case stated, if B. died, leaving his wife enceinte of a son, he was esteemed at common law to die without issue living at the time of his death; or, if he had had one son, who married, and died, leaving his wife enceinte of a son, and then B. died before the birth of the grandson, he was esteemed to die without issue living at the time of his death (the ten months, afterwards put in by statute, not being by common law allowed) ; but in both cases B. had issue, though not living at the time of his death — in one case a son, in the other a grandson, who might have indefinite issue;' and the issue was thus indefinite upon whose failure it was held the limitation over to 0. was to take effect, and hence an estate tail was the result, as above stated.
Now, the only effect of the ten months added by the statute is to characterize the son or grandson en ventre sa mere as living at the death of B., and to put such son or grandson in
Before this statute, if the courts had held that C. was to take if there was no issue of B. living at B.’s death, C. would have taken in exclusion of the son or grandson supposed above en ventre sa mere. Since that statute it is not possible that C. could, take (if estates tail were allowed) while there is any descendant of B. en ventre sa mere at the time of B.’s death (for all children are born within ten months). Now, if B. has issue living at his death, or born within ten months thereafter, such issue takes a’ fee simple, and the limitation over is void. If B. dies without issue living at the time of his death, or born within ten months thereafter, C. takes, unless A. plainly says in his will he does not mean C. to take while B. has any descendants living; and in this case (and in this case as in an estate tail that is created by the will) the statute converts it into a fee simple in B. himself, who may sell it, and cut out his heirs, the objects of the devisor’s bounty. The difference is this: If the devisor does not plainly declare in the will that he never means C. to take while B. has any descendants living, the words “die without issue” mean “die without issue living at his (B.’s) death, or born in ten months thereafter,” and the result is a life estate to B. and a fee simple, by way of ex-ecutory devise, to B.’s issue living at his death, or bom in ten months thereafter. The grandchildren -(or other descendants) are protected, and the devisor’s intention effectuated as far as it can be. If B. has no such issue when he dies, C. takes, and this carries out also the devisor’s intention. But if A. does so plainly declare, then he attempts to create an estate tail, which (as the result of his ignorance of the law) is a fee simple in B., and his intention is defeated.
Statutes _ changing this old construction are of two kinds— those, like that of New York, which imperatively say in the case supposed that the words mean “die without issue living at
Returning from this discussion of the history and reason of § 1202, Rev. Code 1880, we find ourselves advanced thus far in the construction of this deed: (1) It is clear that Eldon C. Field is not to be counted as one of the donees within whose-life the ultimate fee must vest. (2) That under sec. 4 of the deed Bate and Harry took fees determinable upon the contingency of their dying without issue living at the time of their respective deaths., (3) In case they should so die, the ultimate fee was limited over to J. Harris Field, Sr.
The remaining question to consider in determining the validity of the limitation over to J. Harris Field, Sr., is whether,under § 1190, Rev. Code 1880, this limitation over of the ulti
It is very ingeniously and ably argued for appellant, in opposition to the validity of this limitation over to J. Harris Field, Sr.: (1) That under § 1190, Rev. Code 1880, the limitation to the right heirs of the donor must be to them generally, and not specifically to one of them; and that no such limitation over any third person can be made in lieu of a limitation to heirs of the body of the remainderman. (2) That the words “any person may make a conveyance or a devise of lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainderman, and, in default thereof, to the right heirs of the donor,” mean that the words
In answer to the first proposition, it is to be said that in Busby v. Rhodes, 58 Miss., 240, and Cannon v. Barry, 59 Miss., 299, and Halsey v. Gee, 19 Miss., 193 (30 South., 604), this court has expressly held that a limitation over to a specific person, being one of the right heirs of the donor, is valid; and in this same connection it is enough to say in regard to the fourth proposition above that this court has held in Jordan v. Roach, 32 Miss., 620, and Cannon v. Barry, 59 Miss., 299, that the object of this statute is to specify a time limit beyond which the grantor cannot go, but within which he can exercise unbounded discretion; that the purpose of the statute was to prescribe a limit of time beyond which the vesting of the estate in fee could not be suspended; that the lives of the two donees in being were the measure of time within which the ultimate fee must-vest — in other words, that the statute prescribed a limit of time, and not a formula of conveyancing. In answer to the second proposition above stated, we have only to point to the express language of the statute, § 1190, Rev. Code 1880: “Any person may make a conveyance or a devise,” etc., “to a succession of donees,” etc., “and to the heirs,” etc., “and in default thereof to the right heirs of the donor.” And as to the third
• We are, therefore, of the opinion that the limitation over of the ultimate fee to J. Harris Field, Sr., one of the right heirs of the donor, is by the express terms of the statute, and in accordance with the uniform decisions of this court, a valid limitation. It may be confessed that, as insisted by counsel for appellee, the original of this statute (sec. 1190) is obscurely drawn, and that the “original draftsman of the statute had no conception of his own meaning, or of the common-law rules he was displacing;” and the incongruity of dealing, in the same section, with the subjects of fee tail and the rule against perpetuities, is obvious. From this fact follows, doubtless, the difficulty of harmonizing in all respects the decisions of this court in the construction of this statute. The court did not make the statute. It had to deal with it as best it could, being made; just as the court, in Jordan v. Roach, supra, had to treat the act of the 13th of June, 1822, concerning conveyances, as being one expressly intended to abolish estates tail, which the legislature supposed were sanctioned by the law at that time, although the whole doctrine in regard to estates tail and executory devises (which were ingrafted by the English courts upon the statutes of Westminster II, 13 Edward I, called the “Statute de Donis Conditionalibus,” and the Statute of Wills, 32 Henry VIII) never had any existence in this state by any express or positive legislative enactment. All the statutes of England not reenacted in
It will be observed that I have confined this opinion to a ground not touched in the former opinion of this court. Field v. Banking Co., 77 Miss., 180" court="Miss." date_filed="1899-03-15" href="https://app.midpage.ai/document/field-v-middlesex-banking-co-7988311?utm_source=webapp" opinion_id="7988311">77 Miss., 180 (26 South., 365).
We cannot conclude this opinion without acknowledging our indebtedness to the briefs of counsel on both sides, which are marvels of profound learning, searching analysis, and clear reasoning.
It follows from these views that the decree in the court below must be, and is hereby, reversed, and the bill dismissed.
Concurrence Opinion
(concurring).
The deed puts the legal title in J. Harris Field, Sr., to take effect on the death of Eldon C. Field, the grantor, as trustee of an active trust for Bate Field and J. H. Field, Jr., to last during the life of the trustee, who is to have one-third of the usufruct as compensation; and if he should die in the lifetime of Bate Field, the title goes to her for herself and J. H. Field, Jr., they to share the usufruct; and on the death of either without issue of the body the other is to have the whole estate, subject to the rights of J. H. Field, Sr.; and on the death without issue of the survivor of the two, Bate and J. H. Field, Jr., it is to go to J. Harris Field, Sr., or, if he be then dead, to his heirs. Eldon C. Field, the grantor, is, of course, not to be counted as a limitee, because he is a grantor, and the estate really remains his until his death. The only question is whether, under the statute, the ulterior limitee after the last of the two donees who
I am in accord with the opinion of the Chief Justice on-the law, and also in the concurring opinion, on the facts, by Judge Truly.
Concurrence Opinion
(specially concurring).
Reviewing the facts of this case in the light of a completed record, taking into consideration the proof adduced before and after the remand of the case by this court, passing upon the acts of the parties in the light of their environment at the time, the conclusion that the compromise of the 21st of November, 1896, was fairly entered into, is valid, and should be upheld, is irresistible and inescapable. However it may have appeared in the dim, uncertain light of the incomplete record before the court upon the former hearing, a candid and impartial examination of the record now presented demonstrates that Bate Field acted with full knowledge of all her rights in the premises, and, in view of the many legal obstacles in her path, it cannot be said that she decided unwisely in accepting the compromise offered as the result of some days’ negotiation. In passing on her actions at the time, it is not amiss to narrate briefly her surroundings and the past events which led up to and culminated-in the execution of the compromise deed. The photograph of Miss Bate Field, as shown by the record, is this: A young lady twenty-one years of age, educated, cultured, traveled; so capable and intelligent that at nineteen her parents deemed her competent to transact her own business affairs, and upon their petition her disabilities of minority were by the chancery court removed. She had been familiar with the protracted litigation almost from the day of its inception. She was present at, and understood, repeated conversations between E. C.' Field, her uncle; Sarah M. Field, her mother, and their lawyers. The answer filed to one of the bills of complaint is confessedly in her own handwriting, and in this answer the theory of the defense is set forth with wealth of detail, and the trust deed of August 30, 1890, specifically referred to, and her claim of title based on its provisions. She had been kept posted by letters of counsel, forwarded to her by her mother, of the various plans by which it was hoped victory could be snatched from the jaws
Coming now to the occasion on which the compromise was formally closed and the deed in pursuance thereof executed, we find that Bate Field was fully posted as to all past details of the litigation, with full information of all material facts; that she had a long consultation with her attorneys, who, being themselves informed in the premises, went over in detail every theory of. the case, and made disclosures of all the material facts bearing on the case. Again, it is disclosed that Bate Field was not pressed for an acceptance of the offered compromise. On the contrary, after mature reflection, she decided to accept the offer, and therefore, when the attorneys for Middle-sex Banking Company endeavored to end the negotiations, and withdrew the offer of compromise on account of a doubt which arose as to her age, objection was made on her behalf by her counsel, and Mrs. Sarah M. Field, her mother, by affidavit supplied the proof that Bate Field had attained her majority, which proof enabled her to acceptably execute the compromise deed. After execution the deed was retained in her possession for several days before counsel for appellant finally concluded to accept the deed and pay the sum agreed on.
Here, then, is the scene, and these the actors in the drama, as they are portrayed by the completed record of the cause: A young lady, intelligent, competent, fully informed, advised by shrewd and faithful counsel devoted to her interest and learned in the law, with no concealment on the part of any one, granted ample time for reflection and examination, who, after full discussion, enters into a compromise, and by so doing obtains money, of which, at that very time, according to her own story, she stood in pressing need. She was not pressed for an accept
As'this is decisive of the case, I have not deemed it necessary and do not now pronounce any conclusion as to the validity or construction of the trust deed of August 30, 1890.
I concur specially in the result.