Busby v. Rhodes

George, J., delivered the opinion of the court. This is an action of ejectment submitted to the judge of the Circuit Court upon an agreement as to the facts, which were as follows: One C. A. Blackman was the owner in fee-simple of the locus in quo, and died in 1862, having first made a will, which was duly probated, the first clause of which is as follows : “I give and bequeath to my wife, Mickey W., for aud during her natural life or widowhood, all my personal and real estate, of whatever kind or description, I am now seized or possessed [of], and which may be remaining after the payment of my just debts ; and at the death or marriage of my wife, Mickey W., to my daughter Evelina Y.; and should my daughter Evelina Y. die during her minority or without issue, and after the death or marriage of my wife, Mickey W., then to James Rhodes and the children of Sallie Smith — James Rhodes one half and the children the other.” The widow died in 1867, without having married. Evelina survived her, and intermarried with W. W. Busby, the defendant. Of the marriage a child was born, who died before Evelina; and after the death of the child, and in 1878, Evelina died without issue. The plaintiffs were the ulterior limitees mentioned in the will, and the locus in quo was a part of the estate of Black-man. The circuit judge gave judgment for the plaintiffs. The estate given to Evelina was a fee-simple, commencing after the termination of the precedent estate of the widow and defeasible on the contingency named in the will, to wit, the dying of Evelina, after the death or marriage of the widow, without issue living at the time of her death. This results from the pi’ovisions of the statutes then and now in force. By art. 2, page 306, of the Code of 1857, every devise of an estate shall be construed as a fee-simple if a less estate be not [241] limited by express words. Hence the devise to Evelina was a fee without any words of inheritance. Being a fee-simple, it was made by the limitation over, on the contingency of her dying without issue, a base or determinable fee. By art. 8, page 307, of the Code of 1857, the contingent limitation in the will to the plaintiffs, made to depend upon the dying of Evelina without issue, is to be construed exactly as if the words “ living at the time of her death” were inserted. We thus have a devise of an estate with a limitation over dependent upon the expiration of less than three lives in being and upon the dying of the holder of the particular estate without issue living at her death. This limitation byway of executory devise is by all the authorities held to be good; and as the event has happened on which the ulterior limitation was to take effect, the estate has vested in the remainder-men, and they are entitled to recover. The judgment, being in accordance with this view, is affirmed.