39 Miss. 231 | Miss. | 1860
delivered the opinion of the court:
This bill was filed by the appellees, seeking to recover from the possession of the appellant certain slaves claimed by them as legatees in the will of Phebe A. Kenley, deceased.
The material clauses of the will necessary to be taken into view in the present case are the following:
“ Item 3. I direct that my executor will carry on the plantation, making cotton, corn, &c., until my son Allison Wade Sims shall arrive at the age of twenty-one years.”
“ Item 4. When my son Allison Wade Sims arrives at the age of twenty-one years, I give and bequeath to him all my estate, both real and personal.”
“Item 5. It is my desire that my son Allison Wade Sims will select as his guardian the same person who I appoint as my executor, and that the plantation be carried on by him, as my executor and as his guardian, until my said son arrives at the age of twenty-one years.”
“ Item 6. It is my will and desire that in case I survive my said son Allison Wade Sims that, in such event, one-half of all my estate be and is hereby bequeathed to my esteemed cousin, Isaac B. Conger, and the remaining half be and is hereby bequeathed to the children (seven in number) of my beloved brother, Jonathan L. Conger,” (naming them).
“ Item 7. It is my will and desire, should my said son Allison Wade Sims die without lawful issue, that all such property and its increase which it is hereby intended he shall inherit from me
" Item 8. It is my will and desire, should my estate descend, as contemplated in items sixth and seventh, to Isaac B. Conger and the children of my brother, Jonathan L. Conger, that, in such event, the said Isaac B. Conger shall deliver and make a valid title of a negro woman not over twenty years of age to my beloved sister, Jane Cummings, of De Soto county, out of the lot of negroes intended to be bequeathed to him.”
Item 9 directs, in the same contingencies stated in item eighth, that Isaac B. Conger shall pay to her “ esteemed friend, James T. Marye, the sum of five hundred dollars.”
Item 12 appoints James T. Marye her executor.
The bill states that the testatrix died in 1847, and that the will was duly admitted to probate as to her personalty, there being but two witnesses to it; that Allison W. Sims became of age in 1851, and received from the executor the property bequeathed to him, and died in 1858 unmarried and without issue; since which time the slaves mentioned in the will have come to the possession of the appellant; and the appellees claim title to the same under the seventh item of the will.
To this bill a demurrer was filed, which was overruled, and thereupon this appeal was taken.
The bill is based on the construction of the will, that the limitation over, contained in the seventh clause, took effect on the death of Allison Wade Sims, without issue, whether he died before or after reaching the age of twenty-one years. On the contrary, it is contended, in behalf of the appellant, that the limitation' over in favor of the appellees was intended to take effect only on his dying under twenty-one years of age and without issue, and that his estate became absolute on his surviving the testatrix and attaining to that age. These respective claims depend upon the construction to be given to the words, " die without lawful issue,” and the limitation over thereupon, contained in the seventh item of the will.
The rule is well settled, by numerous cases, that in a bequest to A, and, “ in case he dies,” or “ in the event of his death,” simply, without further words of contingency, over to B, the contingency
In some cases, the death of the first taker has been held to mean, his death at any time, notwithstanding the terms of limitation were simply “ upon his death.” But this has been by reason of other expressions or dispositions in the will, indicating that such was the intention or justifying such interpretation. Such are Billings v. Sandom, 1 Bro. C. C. 393; Nowlan v. Nelligan, Id. 489; Lord Douglas v. Chalmer, 2 Ves. Jr. 501; Chalmers v. Storil, 2 Ves. & Bea. 222.
Another class of cases is, where, by the terms of the will, the gift to the legatee is not immediate, but in remainder, or preceded by a life or other partial interest, with an executory limitation over “in case of the death of the legatee,” or like words. In such eases, the words of contingency will be applied to the period when the remainder takes effect in possession, viz., the determination of the preceding interest, and not to the death of the testator. Thus, if such legatee die before the determination of the preceding interest, the estate would go over to the ulterior legatee; but if he survive the party holding the preceding life-interest, he will hold absolutely. 1 Roper, Legacies, 409; 2 Jarm. on Wills, 693, 665. Of this class are the cases of Galland v. Leonard, 1 Swans. 161; Harvey v. McLaughlin, 1 Price, 264; and Da Costa v. Keir, 3 Russ. 360.
But the rule first stated was established on the reason of necessity, from the absence of any other period to which the
This case does not come within either of the three classes of cases above mentioned.
Upon the face of the fourth and seventh items of this will, a plain case is presented of an estate in fee in A. W. Sims, on his 'reaching majority, determinable on his dying without issue; and upon that contingency, of an executory devise over to the parties named in the sixth item. 1 Jarm. on Wills, 237; Jordan v. Roach, 32 Miss. R. 481-604. The will contains no clause showing that the words of limitation were not used by the téstatrix in their established legal sense, and therefore they must be understood in that sense. By force of our statute, the words, “ dying without issue,” mean “ a limitation to take effect when such person shall die, not having such heir, issue, &c., living at the time of his death, or born to him within ten months thereafter,” &c. In the absence of all expressions showing a different intention, the words of limitation must be taken to refer to the time of the death of the testatrix. Such was the decision of this court upon the provision of a will similar to the present — Jordan v. Roach, 608 ; which is inconsistent with the construction here contended for, in behalf of the appellants, that the dying without issue must be referred to the death of the legatee before his majority. And this view is conclusive against the construction insisted upon by the appellant.
But various authorities are relied on in support of this con
The case is not applicable to the present will, but belongs to the third class of cases above mentioned, where the gift is not immediate, but is preceded by a life-estate in another, with a limitation over in case of the death of the legatee; in which case, as we have above seen, the executory limitation over will be referred to the period of determination of the preceding interest, and not to the death of the testator. Harvey v. McLaughlin is of the same character.
Thackeray v. Hampson, 2 Sim. & Stew. 214, was a bequest to two granddaughters, “ in trust, until they came of age or marry, the interest in the mean time to be paid to them; but if one of them die before marriage or (coming) of age, then to go to the survivor, or her child or children ; but if they should both die leaving no issue, giving them the power to leave it by will as they think fit.” One of them married and the other attained twenty-one years. There could be no room for controversy in this case. An absolute estate was plainly given upon the legatees
Home v. Pillans, 2 Myl. & Keene, 15, 7 Eng. Ch. R. 238, was a bequest to nieces “ when and if they should attain their ages of twenty-one years, to their sole and separate use; and in case of their death or of either of them, leaving children or a child, I give and bequeath the share or shares of such nieces or niece so dying unto their or her respective children ox child.” In support of the view of the ease taken by the Lord Chancellor, that the gift to the nieces was absolute unless they died under the age of twenty-one, and that that was the contingency contemplated upon which their children should take, he relies on the authority of the first and third classes of cases above referred to, p. 242, Eng. Ch. R.; and refers to the particular provisions of the will — that the bequest was to be for “ their sole and separate use, free from the debts or control of their husbands” — as evincing an intention that they should vest in the nieces absolutely at a particular time, p. 243. As to the cases relied on by him, it appears to be clear that they are not applicable to the case
Barker v. Lea, 1 Turn. & Russ. 413, 11 Eng. Ch. R. 224, was a bequest to nephews and nieces on their respectively attaining twenty-five years, with a direction to trustees to apply the profits
The decision of the case of Van Houten v. Pennington, 4 Halsted Ch. 745, turned upon the grammatical construction put upon the clause of ulterior .limitation in the will; and it was held that the devise over was connected primarily with the time of its enjoyment by the devisee, and that the period of its taking effect applied to the event of the devisee dying before coming into possession, which was referred to in the clause immediately preceding that containing the limitation over. The case was decided upon the peculiar phraseology of the will, which, first, gave* an absolute estate unconditionally to the devisee; secondly, directing that the property should be rented out for the benefit of the devisee until he reached the age of twenty-one years, who in the mean time was to receive, out of it, an education and support; and, thirdly, “ hut if he should die leaving no children," then over. It was considered that the limitation over was not intended as a qualification of the absolute estate first given, but had reference to the period when this estate was to come into possession, and the contingency that the devisee might die before attaining his majority and coming into possession. It appears to be a case
The case of Mary Biddle's estate, 28 Penna. R. 62, is relied on by the appellant; but the decision is plainly not in accordance with established doctrine, and is inconsistent with many decisions in that State. Eichelberger v. Barnitz, 9 Watts, 450; Rancel v. Cresswell, 30 Penna. R. 158; Criley v. Chamberlain, Id. 163.
Other qases are cited in behalf of the appellant; but they fall within one of the three classes of cases above referred to, and need not be particularly examined.
After a careful reconsideration of the case, we are satisfied that the view we took of it on the first argument is not correct ; and that the decree overruling the demurrer should stand.
The decree is, therefore, affirmed, and the cause remanded, and the appellant required to answer the bill within sixty days.