Stigler v. Shurlds, 95 So. 635

95 So. 635 | Miss. | 1923

Sykes, P. J.,

delivered the opinion of the court.

The appellant Mrs. Mary Ella Stigler seeks by her bill in chancery to cancel as a cloud upon her title to certain lands the claim of her daughter and the other defendants. The rights of all of these parties are measured by a proper construction of the will of Mary Lyons, the mother of the appellant; consequently it is necessary to in part construe this will. The material part of it is as follows:

“I devise and bequeath all the property that I may own at my death, both real and personal, to my daughter, Mary Ella Lyons, who is now single and without lawful issue, during her lifetime, she to have and enjoy without let or hindrance all the revenues derived from my property after paying all the debts I may owe at my death. If my daughter, Mary Ella Lyons, shall die without leaving any children, it is my will that all my property be divided equally between Kate Shurlds, daughter of John S. Shurlds, and the surviving children. of Robert E. Shurlds, unless she shall have married and leave a husband surviving her, in which event her husband shall have the revenue accruing from my property during his lifetime, after which it shall revert to Kate Shurlds and the surviving children of Robert E. Shurlds, share and share alike, as aforesaid. In the event my daughter, Mary Ella Lyons, shall leave children surviving her they shall inherit all my property, but if they should die without lawful issue, it shall then revert as hereinbefore provided.”

The appellant contends that the will violated section 2269, Hemingway’s Code (section 2765, Code of 1906), in two particulars: First, that an estate in fee tail is devised; and, second, it makes devises to a succession of more donees than is allowed under the second part of this section.

The chancellor sustained the demurrer to the bill and dismissed it, from which decree this appeal is here prosecuted.

We are only called upon on this appeal to decide what estate is devised to the appellant under this will. The appellant is a daughter of the testatrix. Her maiden name as shown by the will is Mary Ella Lyons. By the first part of the will all of this property is devised and bequeathed to this appellant during her lifetime. It is also perfectly plain that it was the intention of the testatrix that if Mary Ella Lyons died without leaving any children, •and also without leaving.a husband surviving her, to devise the remainder in fee simple to the Shurlds, appellees. There are also other contingencies provided for in the .will that it is unnecessary to notice on this appeal.

If this be an estate in fee tail, under section 2280, Hemingway’s Code (section 2776, Code of 1906), which abolishes the rule in Shelley’s Case, this appellant was only devised a life estate, and her daughter as remainderman would take an estate in fee simple under this and section 2269, Hemingway’s Code (section 2765, Code of 1906). Liberty Bank v. Wilson et al., 116 Miss. 377, 77 So. 145.

Neither does it violate the second part of section 2269, Hemingway’s Code (section 2765, Code of 1906), in the contingency stated above; that is, if this appellant die without leaving a child or a husband, the ultimate limitees would take the estate in fee simple.

It is not necessary to consider all of the provisions of the will and to say whether under any of the contingencies therein mentioned the second part of this statute is violated. These questions cannot be considered until these contingencies arise and a proper case is then presented to the court for decision. Liberty Bank v. Wilson, supra. All that we are now called upon to decide, and all that we do decide, is that under this will this appellant only takes a life estate in the property devised.

The decree of the lower court is affirmed.

Affirmed.