Summary
In Lynch v. Lynch, 196 Miss. 276, 17 So.2d 195 (1944), this Court held that all that was necessary for a partition is that the parties be co-tenants of whatever is to be partitioned.
Summary of this case from Blackmon v. BlackmonOpinion
No. 35562.
February 28, 1944.
1. PARTITION.
Where will devised residue of estate to testator's widow and minor son, share and share alike, and provided that in event son should die before arriving at 21 years, his share should go to heirs of testator's body then living, the decree partitioning in kind various interests in certain lands owned by testator at time of his death would not violate statute prohibiting partition of any rights in reversion or remainder (Code 1942, sec. 961).
2. PARTITION.
All that is necessary to right of partition is that parties shall be cotenants in possession of whatever is to be partitioned, and it is not essential that cotenants should have equal rights in the land.
APPEAL from the chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
H.V. Watkins Ralph B. Avery and Howie, Howie McGowan, all of Jackson, for appellants.
The statutory prohibition against partition of reversions or remainders includes executory devices.
It is admitted that the authorities generally are practically uniform that ownerships such as are had in the case at bar are subject to partition, but partition in this state is strictly statutory. When Section 2920 of the Code of 1930 refers to "and not in reversions or remainder," there is no reasonable ground to assume that the words were used by the legislature in their narrowest and most technical sense. On the other hand, it seems reasonable, from the history of the statute and the decided cases in Mississippi, that it was the purpose to prevent partition, except where there was an unlimited fee ownership or in cases involving a term of years not less than five. Admittedly, until the title of Barry Dexter Lynch is lost by his death, prior to becoming twenty-one years of age, his title, in some respects, is no less than an unqualified fee, without the possibility of defeasance. However, the property cannot be sold by him and he could be restrained from committing waste.
The executory devise to the heirs of his body, by the testator, in the event Barry Dexter Lynch dies before his majority, is in the nature of a contingent remainder.
Manners v. Manners, 27 N.J.L. 142; 68 C.J. 499, Sec. 114.
See also Ricks v. Merchants National Bank Trust Co. of Vicksburg, 191 Miss. 323, 2 So.2d 344; Lawson v. Bonner, 88 Miss. 235, 40 So. 488.
It seems obvious that the statute in question, as construed, is not broad enough to admit of partition when one of the parties has only a defeasible fee simple estate subject to being divested upon the happening of a contingency, regardless of the authorities in other jurisdictions. It seems clear that "any rights in reversion or remainder," as used by the court in the Lawson case, is broad enough to include any rights in the nature of a reversion or remainder, or rights partaking of the characteristics of a reversion or remainder.
These appellants have all conceded that it would be desirable and beneficial for all parties for the partition, as prayed for, to be had, but it is submitted that under the terms of the statute, as interpreted by this court, partition as prayed for will not lie and that the lower court was in error in sustaining appellee's demurrer.
Watkins Eager, of Jackson, for appellee.
It is usually held that the owners of future interests in real property have no right to compel partition. It is equally well-established, however, that, unless specifically prohibited by statute, owners of vested present interests in possession have a right to compel partition of other future interests. Mississippi, however, has interpreted Section 2920, Code of 1930, to prohibit owners of vested estates in possession from partiting property if any person has any title in remainder or reversion in said property (Lawson v. Bonner, 88 Miss. 235, 40 So. 488). This statute, being contrary to common law if actually prohibiting the absolute owner of a vested interest in possession from partiting when it subjects some estate in remainder or reversion to partition, should be strictly construed.
It is, of course, well established that no beneficiary of an executory devise or limitation on a fee upon condition subsequent can himself compel partition. However, it is equally well established that partition can be compelled as against such future interest by the owners of the vested fees unless specifically prohibited by statute. Where A. has an absolute fee simple title to an undivided one-half interest in property and B. has a vested fee title to the other undivided one-half interest subject only to an executory devise over to C. upon the possible happening of a condition subsequent, A. can compel partition even of the possible future interest in B.'s half interest. Section 2920, Code of 1930, does not prohibit such a partition, there being estates in possession with a right of possession and none in a reversion or remainder. It has been practically universally held that beneficiaries of executory devises, shifting uses, etc., are subject to having their interest, if it can be called an interest, partited by owners of other interest in fee. Moreover, there is here involved the interpretation of a will in which there is manifested an intent by the creator of the interests that any rights of beneficiaries of the executory devise be subject to partition as between the two persons owning the fee in possession.
Unless specifically prohibited by statute, owners of vested estates in possession have a right to partite property, even thought it may subject to partition future interests in remainder or reversion.
Whitaker v. Porter (Ill.), 151 N.E. 905; Ruck v. Molotov (Mo.), 9 S.W.2d 609; A.L.I. Restatement of Property, Future Interests, Sec. 177.
It is true that in Mississippi this general rule has been qualified by the interpretation of Section 2920, Code of 1930, in Lawson v. Bonner, 88 Miss. 235, 40 So. 488. In that case this court held, based only upon the exception in Section 2920 of estates "in reversion or remainder," that there could not be a partition by one Laura Bonner who owned an undivided one-half interest in certain land as against Emily Lawson who owned a life estate in the other half interest and remainder in two named grandchildren. However, Section 2920 does not prohibit partition where there is a possible estate following a fee upon condition subsequent, i.e., an executory devise, conditional limitation, shifting uses, etc.
There is not involved here a "remainder" or a "reversion" but solely and only an executory devise.
Ricks v. Merchants National Bank Trust Co. of Vicksburg, 191 Miss. 323, 2 So.2d 344; Anderson v. Messinger, 146 F. 929; Eaton v. Straw, 18 N.H. 320; Bartram v. Powell (Conn.), 89 A. 885; 31 C.J.S., Estates, Secs. 68, 105, pp. 88, 125; 31 C.J.S. 93-94, Sec. 78; 31 C.J.S. 134, Sec. 121.
Owners of vested interests with the present right of possession can compel partition as against mere executory interests.
Beard v. Rosenzweig, 190 Miss. 325, 200 So. 261; Pendleton v. Williams (N.C.), 95 S.E. 400; Pitzer v. Morrison (Ill.), 111 N.E. 1017; Bush v. Hammill, 112 N.E. 375; Packard v. Packard, 16 Pick. (Mass.) 191; Du Pont v. Du Bos (S.C.), 29 S.E. 665; 47 C.J. 298, Partition, Sec. 80.
The intent is manifested by the will creating the interest that the executory interests be subject to partition.
A.L.I., Restatement of the Law of Property, Future Interests, Ch. 11, Sec. 173.
We respectfully submit that the testator here by imposing the limitation only upon the "share" of the minor son, contemplated that the real property constituting his estate would be divided into shares.
See 57 C.J. 560, the word "share."
The appellee, Mrs. Mary Frances Lynch, filed the bill in this case against her children and grandchildren to partite in kind various interests in certain lands owned by her husband at the time of his death. The bill was answered and demurred to on the ground that under the law the lands could not be partited in kind for reasons therein set forth. The court overruled the demurrer and granted an appeal to settle the principles of the cause.
Frederick Dexter Lynch, the husband and father, died in 1942, leaving a last will and testament. He left three sons and two grandchildren. In his will he made bequests in money to all of his heirs except his wife, the appellee, and the minor son, Barry Dexter Lynch. As to them the will contains these provisions: "All the rest and residue of my property of every kind, character and description, wherever the same may be situated, that I may own or which I may be interested in at the time of my death, I devise and bequeath to my wife Mary Frances Lynch and my son, Barry Dexter Lynch, share and share alike." Then the will provides "if my said child die before he arrives at the age of twenty-one years, then in that event, his share of my estate shall go, share and share alike, to the heirs of my body then living." Barry Dexter Lynch is a minor and is still living.
It is argued on behalf of appellants that the decree of the court violates the "reversion [and] remainder" provision of Section 961, Vol. 1, Code 1942, which is in this language: "Partition of land held by joint-tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five, may be made by decree of the chancery court of that county in which the lands, or some part thereof, are situated; or if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county."
There is no merit in that contention. Mrs. Lynch and her son are tenants in common in possession during the period of his minority, and if he should live beyond twenty-one years they would be tenants in common of the fee in possession, and if he should die before that time the heirs of the body of the testator then living would be tenants in common with Mrs. Lynch, owning jointly a one-half undivided interest in fee, and she the other one-half undivided interest in fee, with the right of joint possession. No right of reversion or remander is involved. The interest of those who would take the share of the minor in case of his death before maturity are not involved. Their rights, if they should ever have any, can not be adjudicated in this proceeding. In Lawson v. Bonner, 88 Miss. 235, 40 So. 488, 490, 117 Am. St. Rep. 738, the court used this language: "Our statutes (Code 1892, Sec. 3097, et seq.) make it plainly improper to partition any rights in reversion or remainder, or to make reversioners or remaindermen parties to any partition proceeding. The writ and all the proceedings are possessory purely. It was, therefore, manifest error for the court to attempt to deal in any way with the rights of the children of Charles and Richard Lawson."
It is not essential to the right of partition that the co-tenants should have equal estate in the land. All that is necessary is that they shall be co-tenants in possession of whatever is to be partitioned. Black v. Washington, 65 Miss. 60, 3 So. 140.
Affirmed and remanded.