Summary
In Balfour v. Wells et al., 183 Miss. 707, 183 So. 392, 184 So. 313, the will used this language: "To my daughter, Mrs. A.E. Love,... during her natural life, and at her death it shall descend to her children."
Summary of this case from Boxley v. JacksonOpinion
No. 33376.
September 26, 1938.
1. JUDGMENT.
A decree dismissing bill on general demurrer was a final decree on the merits where an appeal therefrom was not asked for or granted.
2. APPEAL AND ERROR.
An appeal from decree dismissing bill on general demurrer could be taken within six months after rendition thereof where the decree was a final decree on the merits by reason of the fact that an appeal therefrom was not granted by the court nor asked for (Code 1930, secs. 14, 2323).
ON MERITS. (Division B. Nov. 7, 1938. Suggestion of Error Overruled Nov. 21, 1938.) [184 So. 313. No. 33376.]WILLS.
Under will devising realty to testator's daughter for life with provision that at her death it should descend to her "children," devise of remainder to children was gift to class vesting immediately on death of testator in only member of class then in being, subject to open up and let in any members of such class as should thereafter come into being and hence remainder vested in wife and only heir at law of remainderman at his death, where remainderman predeceased daughter of testator and no others of the class came into being to share the remainder.
APPEAL from the chancery court of Benton county; HON. HERBERT HOLMES, Special Chancellor.
L.T. McKenzie, of Ashland, for appellant.
The demurrer should have been overruled because the will of L.T. McKenzie clearly expressed his intention as to how his property should descend and this intention must be followed if it can be ascertained from the will or other evidence and does not violate any rule of law against perpetuities. Neither of which was done. This Honorable Court has from its earliest formation adhered to the doctrine that the intention of the testator must be carried out by the courts if it can be ascertained and does not violate the law.
Sections 1201 and 1203 of the Code of 1880 were construed by this Honorable Court in the case of Banking Co. v. Field, 84 Miss. 646, plainly announcing the doctrine that Section 1203 changing the common law and providing that a clause in a deed or a will vesting title in one person in case of the death of another without issue of his body shall be held as a limitation to take effect when the person named shall die without issue of his or her body living at the time of his or her death, or born within ten months thereafter unless the intention of the limitation be plainly declared on the face of the instrument creating it.
We find from a close study of the statutes from 1857 to the present time that when a life estate is limited to a donee with remainder to his or her children at her death, the life estate cannot be enlarged and if donee die without children living at the date of his or her death, then by operation of law the property reverts to the estate of the grantor's heirs of his body living at the date of the death of the first donee.
Sections 2116 and 2118, Code of 1930; Hanie v. Grissom, 178 Miss. 108.
Fred M. Belk, of Holly Springs, for appellees.
The devise to Mrs. A.E. Love created in Richard Love, Jr., at the moment of the death of testator, L.T. McKenzie, Sr., a vested remainder.
Nichols v. Denny, 37 Miss. 59; Branton v. Buckley, 99 Miss. 116; Schlater v. Lee, 116 Miss. 701; Allen v. Allen, 145 Miss. 368; McDaniel v. Allen, 64 Miss. 417.
The law favors the vesting of estates at the earliest moment, and, generally, where a contrary intent does not appear, devises to a class vest immediately upon the death of the testator in the members of the class then in being, subject to open and let in members thereof who may afterward come into existence before the date fixed for the ascertainment of the members of the class. Where the devise to a class vests immediately upon the death of the testator, it is attended by all the incidents of a vested estate and consequently the shares of all members of the class in existence at that time, but dying before the period fixed for the ascertainment of the members thereof, do not lapse, but devolve upon their appropriate representatives.
Branton v. Buckley, 99 Miss. 116; Nichols v. Denny, 37 Miss. 59; 2 Jarman on Wills (6 Ed.), pages 167 and 168; 24 Am. Eng. Encyc. of Law (2 Ed.); Thomas v. Thomas, 73 Am. St. Rep. 405.
A testator's intention must be gathered from the language employed by him in the instrument.
Brickell v. Lightcap, 76 So. 489; Powell v. Warmack, 76 So. 504.
Will must be construed and intention ascertained from the usual and ordinary language expressed therein.
Dely v. Katts, 128 So. 268.
It is always the safest rule to adhere to the words of the instrument without considering either circumstances arising aliunde or calculations as to the amount of the property or the consequence of the particular construction.
35 Miss. 473.
Argued orally by Fred M. Belk, for appellee.
The bill in this case was dismissed on general demurrer. An appeal therefrom was not granted by the court, nor was it asked for. It was, therefore, a final decree on the merits. It is argued that Section 14 of the Code of 1930 applies which provides that in the class of cases therein set out, an appeal must be applied for and bond given within thirty days after the order or decree applied for is filed in the proper office, whether the decision be in term time or in vacation. That statute applies to interlocutory decrees. The controlling statute here is Section 2323 of the Code of 1930, which gives the right of appeal from a decree of this character within six months after its rendition.
Under the last will and testament of L.T. McKenzie, deceased, there was bequeathed unto one of his daughters 400 acres of land in Benton county, the language used in making the devise being: "To my daughter, Mrs. A.E. Love, . . . during her natural life, and at her death it shall descend to her children." At the time of death of the testator, the said Mrs. A.E. Love had one child, Richard Love, who predeceased her; and there were no other children thereafter born to her. Richard Love left surviving him, as his sole heir at law, his wife, who is now Mrs. Winnie D. Wells, the appellee.
The bill of complaint filed in this case by the appellants alleges the foregoing facts, makes the will an exhibit thereto, and asks that the court construe the said provision of the will to mean that a contingent and not a vested remainder was created; that is to say, that upon the termination of the life estate of Mrs. A.E. Love, without a child or children having survived her, the land descended to all of the heirs at law of the testator, instead of to the appellee as the wife of Richard Love. The court sustained a demurrer to the bill on the ground that the remainder became vested in Richard Love at the time of the death of the testator, although the enjoyment of this vested remainder by him or his heir at law was postponed unto the death of the life tenant. In this the chancellor was correct. McDaniel et al. v. Allen, 64 Miss. 417, 1 So. 356, and Allen v. Allen, 145 Miss. 368, 110 So. 685. The devise of the remainder to the children of Mrs. A.E. Love was a gift to them as a class, and vested immediately upon the death of the testator in the only member of the class then in being, subject to open up and let in any members of such class as should thereafter come into being. And, since there are no others of the class who came into being to share such remainder, it vested in Richard Love alone at the death of the testator, and in the wife and only heir at law of such remainderman at his death.
The decree of the court below must therefore be affirmed.
Affirmed.