Jossey v. White

By the Court. Lumpkin, J., delivering the opinion. A very short time need elapse to bring about a very great change'in the destination of the property disposed of by tbe will of Reuben Brown. For not only is there a possibility of issue by the present husband of bis daughter, Lucinda M.; but should Jossey die and the widow [270] intermarry, the possibility would be increased almost to a probability, that she might have offspring by another husband. I refer to the well authenticated physiological fact that a feme covert, who remained for years barren, during her first marriage, was delivered of twins in nine months from the date, of her second. This has occurred twice in this State within my own knowledge ; and should the child or children by the present or any future husband be “raised,” all the questions but one which are involved in this record, would be settled without the judgment of this or of any other court. The only exception we propose to consider and decide in this case is, what estate did Mrs. Jossey take under the will of her father ? And we answer confindently, a life estate only, and nothing more. The rule in Wild’s case is not applicable to this. The first resolution in that case was, that when lands are devised to a person and his children, and he has no children at the time of the devise, the parent takes an estate tail. And the reason assigned for this doctrine is, that children or immediate devisees, cannot take, because they are not in esse; and by way of remainder, they cannot take, for that was not the devisor’s intent, for the gift to the children was immediate. Therefore, such words shall be taken as words of limitation. With the reason of this or any other technical lore con■nected with this branch of the law, I have nothing to do. Thank God, it no longer cumbers our statute book. Under our late act, it will soon be buried, with the numerous other follies and fossil remains of a by-gone age. But the second resolution in Wild’s case does cover and control this. It is, that if a man devise lands to husband and wife, and after their decease to the children, in this case, although they have not any child at the time, yet any child which they have after, may take by way of remainder. For his intent appears that the children should not take immediately, but after the decease of the parents. [271] Taking the two resolutions then together, they amount to this : A devise to one and his children when he has no children, conveys an estate tail. But a devise for life with remainder to children, is good, and will rest in such child or children as may be born afterwards. All the interest the children of Lucinda M. take in the life time of their mother, is a support out of the property of her separate estate. There is no immediate gift to them of the property. At the death of their mother it goes to them absolutely, subject to be divested if they should die without having attained to maturity. The fee then does not rest in Mrs. Jossey, under the rule in Wild’s case, by virtue of the act of 1821. But it is insisted that the limitations over, creates a perpetuity, and is therefore, void. That will depend upon the answer to the question— must the contingency upon which this estate is limited to the child or children of the daughter, happen, if it happen at all, within the compass of a life or lives in being at the death of Reuben Brown, the testator j and twenty-one years and the fraction of a year afterwards ? If so, the limitation over is good, by way of executory devise. The contingency upon which this estate must take effect, is Lucinda M. Brown, (Mrs. Jossey,) leaving children at her death who may die and not be raised. This event must necessarily happen, if it happen at all, within the time aboye specified. Whether she should leave child or children who should be raised or die and not be raised, the fact will be ascertained beyond all doubt within twenty-one years and nine months after the death of 1 the mother. The property must vest absolutely before that time, and become alienable and descendible ; or it will be fixed and settled, that if the child or children if .any are dead before being raised, or coming to maturity, and the estate will go over. [272] This bequest, therefore, is not subject to the rule against perpetuities; and the life estate of Lucinda M. is not enlarged to a fee, under, this aspect of the will» The heirs at law not being parties to the bill, we decline expressing any opinion as between them and tlie •husband and 'grand-children. We are fully prepared to do so, under the able and lucid argument which has been submitted in this case. The thorough investigation of the doctrines involved in this discussion, is highly creditable to the counsel, and of incalculable benefit to the court,, in enabling it to come to clear and satisfactory conclusions.