81 Miss. 599 | Miss. | 1902
delivered the opinion of the court.
On May 10, 1847, Ransom' Bunckley had a wife, and three sons and a daughter, who were married; and he was the owner of a large quantity of land, and many slaves and other property. His wife’s name was Mary Ann, and his sons were named Nathan, Ransom P. and Douglas. Nathan was married and had three children then, and several were born to him afterwards. One of the three children of Nathan then living
The question presented is as to the effect of the deeds A and B. There is a third deed, executed by Ransom Bunckley on the same day as the others, whereby he conveyed certain slaves to a trustee for the use of his daughter; but it has no influence on this case, although set forth in the bill, and we make no further mention of it. The theory of the bill has been already mentioned, and the argument to support it is that the deeds A and B, which vested remainders in the .three sons, had the effect, on the death of Douglas childless, to vest in his surviving brothers life estates, and on the death of Ransom P. the estate vested in Nathan for his life, and on his death the fee vested in his children then living, as the ulterior limitees, within the meaning of the deeds. The argument on the other side, not wholly, but chiefly, is that there is fatal repugnancy between
In our view there is no repugnancy in the deeds, and they do not violate the rule against perpetuities or remoteness, and the limitations in them were valid. The deed A created a remainder in fee in the three sons, Nathan, .Ransom P. and Douglas,- to take effect, in possession and enjoyment, after the death of the grantor, Ransom Bunckley. The fee in remainder was vested, but defeasible, and liable to be divested, upon the happening of the contingency named, to wit, the death of either remainderman at any time without leaving a child or children surviving, when it (the estate in remainder) was to vest in the survivor or survivors and thei.r children. The provision is not that the share or interest of the decedent shall vest in the survivors and children, but survivors and children shall take the whole property • conveyed. The legal effect of the deed was, on the death of any of the remaindermen without child or children surviving him, to shift the whole estate in remainder, and vest it,- as a whole, in survivors and their children. The provision is a conditional limitation whereby a shifting or secondary use was created, making a substitutional gift to ‘ ‘ survivors and their children, ’ ’ who, on the death of one of the remaindermen, became joint owners of the remainder before in the three sons of the grantor. Had the provision been that on the death, childless, of either remainderman his interest should vest in the survivbrs, the result would have been to vest the whole in the two survivors, with no interest in their children. Under the plain terms of the deed the “ survivors and their children ’ ’ took a new estate created by the conditional limitation, substituting the estate made by it for that before existing. On the death of Douglas without a child surviving him the conditional limitation took effect, and the whole
We have given this case much consideration, examining with great care and patience the various theories and arguments of' counsel, and books cited on both sides, and might have filled many pages with the reasoning by which our conclusion was reached; but we content ourselves with merely stating results,
Affirmed and rema/nded for a/nswer withim, thirty days after mandate filed below.
Judge Calhoon having, before his appointment to the bench, been of counselin another litigation between the parties touching the land in controversy, recused himself, and J. A. P. Campbell, Esq., a member of the supreme court bar, was appointed special judge, and presided in his place.