Summary
In Magee v. Morehead, 123 So. 881, a rule of property was held to be involved and the Court declined to overrule the decision under which it was established.
Summary of this case from Nichols v. Gaddis McLaurin, Inc.Opinion
No. 27990.
September 30, 1929.
1. DEEDS. Time for ascertaining class to receive remainder, under deed conveying life estate, and to grantor's heirs on life tenant's death without issue, was date of grantor's death.
Under deed conveying land to grantor's daughter for life and the heirs of her body and grantor's natural heirs in case she died without living issue, the time for ascertaining the class to receive the remainder was the date of the death of the grantor, regardless of fact that life tenant died without issue.
2. COURTS. Decision establishing rule of property and not mischievous in operation or effect will not be overruled.
Former decision of supreme court establishing a rule of property will not be overruled, where it is not mischievous in its operation or effect.
APPEAL from chancery court of Panola county, Second district, HON. N.R. SLEDGE, Chancellor.
James McClure, Jr., of Sardis, for appellant.
The law is clear that in vested remainders, the time for ascertaining the class to take the same is referred to the date of the death of the testator. Appellants do not contend that this is not the law. But the law is different as to contingent remainders.
A contingent remainder is one limited to take effect either to a dubious and uncertain person or upon a dubious or uncertain event.
Thompson Real Property, page 184; 23 Ruling Case Law, 513; 23 Ruling Case Law, par. 75; Allison v. Allison, 101 Va. 537; Love v. Lindstedt, 76 Or. 66, Ann. Cas. 1917 A, 896.
A remainder to the heirs of the life tenant is generally a contingent remainder, for, there being no heirs to a living person until the termination of the life estate, no one can claim as the heir of the life tenant.
Duke v. Faulk, 37 S.C. 255, 34 A.S.R. 745; Doe v. Provost, 4 Johns (N.Y.) 61, 4 Am. Dec. 249; Westcott v. Meeker, 144 La. 311, 29 L.R.A. (N.S.) 947; Mudge v. Hammill, 21 R.I. 283, 79 A.S.R. 802.
Concurrent or alternative contingent remainders or contingent remainders with a double aspect are created by a limitation to one for life, with remainder in fee to his children or issue or heirs and, in default of such children, issue or heirs to another.
Garrison v. Hill, 79 Md. 75, 42 A.S.R. 363; Watson v. Smith, 110 N.C. 28; Stump v. Findlay, 2 Rawle (Pa.) 168, 19 Am. Dec. 632; McCreary v. Coggershall, 74 S.D. 42, 7 L.R.A. (N.S.) 433.
Where there is a gift to A one of the testator's children for the life of B, another of his children, with remainder on the death of B to the heirs of B's body, and if there shall be no heirs of the body of B then living, to the testator's heirs at law, constitute alternative limitations and the remainder to the heirs of the testator is contingent.
Tevis v. Tevis, 259 Mo. 19; Shapiro v. Howard, 113 Md. 360, 140 A.S.R. 414; Golladay v. Knock, 235 Ill. 412, 126 A.S.R. 224.
There can be no doubt in light of the law above cited that this deed created a contingent remainder of a double aspect.
Where gifts are contingent on future event, the time for ascertaining the class to receive the gift is at the time the event happens, and not at the time of the death of the testator.
Wilson v. Doolittle, 184 Cal. 63, 193 P. 581; Haddock v. Perham, 70 Ga. 572; Johns v. Askey, 190 Ill. 58, 60 N.E. 76; Bond v. Moore, 236 Ill. 576, 19 L.R.A. (N.S.) 540, 86 N.E. 386; Sears v. Russell, 8 Gray 86; Heard v. Read, 169 Mass. 216, 47 N.E. 778; Brown v. Wright, 194 Mass. 540, 80 N.E. 612; Boston Safe Deposit T. Co., 196 Mass. 35, 81 N.E. 654; L'Etournray v. Henquenent, 89 Mich. 428, 28 Am. St. Rep. 310; Hardy v. Gage, 66 N.H. 552, 22 A. 557; Holmes v. Alexander, 134 A. 536; Beers v. Grant, 110 App. Div. 152, 185 N.Y. 533, 77 N.E. 1181; Salter v. Drowne, 205 N.Y. 204, 98 N.E. 401; Jenkins v. Lambeth, 172 N.C. 466, 90 S.E. 513; Pierce v. Hubbard, 153 Pa. 18, 23 A. 23; Everitt's Estate, 195 Pa. 450, 46 A. 1; Wood v. Schoen, 216 Pa. 425, 66 A. 79; Hildebrant's Estate, 268 Pa. 132, 110 A. 760; Dorrance v. Greene, 41 R.I. 104; Allison v. Allison, 101 Va. 537, 62 L.R.A. 920; In Re Karn, 2 Ont. Week. Rep. 841; In Re Henry, 49 A.L.R. 169; Shapiro v. Howard, 113 Md. 360; Patterson v. Patterson, 116 So. 734.
Lamb Johnson, of Batesville, for appellee.
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; McDaniel et al. v. Allen, 64 Miss. 417; Alexander v. Richardson, 106 Miss. 517, 64 So. 217; Baker v. Richardson, 96 Miss. 395; Bramlett v. Roberts, 68 Miss. 325; Leflore County v. Allen, 80 Miss. 298.
Former decision that has become a rule of property will not now be disturbed.
Becker v. Columbia Bank, 112 Miss. 819, 73 So. 798; K.C. Lumber Co. v. Moss, 119 Miss. 185, 80 So. 638; Edward Hines Yellow Pine Trustees v. State, 134 Miss. 533, 98 So. 158.
On the 6th day of September, 1887, A.J. Magee, then the owner of the land here in question, conveyed an estate therein to his daughter, Roena Magee Smith; the deed in its operative words of conveyance reading as follows: "I hereby sell and convey to her (Mrs. Roena M. Smith) during her natural (life) and to the heirs of her body and to my natural heirs should she die without living issue," etc.
It is the contention of appellant that the estate created under this deed was a contingent remainder of a double aspect, and that the time for ascertaining the class to receive the remainder, the life tenant having died without issue, is at the date of the death of said life tenant, and not the date of the death of the grantor; and appellant has submitted a wealth of authority from the text-books and from the decisions in other states to sustain his position. It is clear, however, that this exact point has been decided adversely to the contention of appellant in Alexander et al. v. Richardson, 106 Miss. 517, 64 So. 217. That decision has now become a rule of property, and not being mischievous in its operation or effect, we cannot overrule it. Forest Product Co. v. Buckley, 107 Miss. 897, 66 So. 279; Webb v. Railroad Co., 105 Miss. 175, 62 So. 168.
Affirmed.