Halsey v. Gee

Teebal, J., delivered the opinion of the court. The fifth clause of the will of Greenwood Leflore vested the fee simple to the Big Sand place in the two devisees as tenants in common, with cross remainders over, contingent on the death of either without issue, and with an ulterior limitation if both should die 'without issue. Their joint conveyance vested in their grantee the fee as held by them — that is, subject to be divested and vested in the ulterior limitees if both devisees should die without issue. The death of John B., one of the devisees, leaving issue, destroyed the ulterior limitation by making impossible the contingency on which it was to take effect, with the result that the fee was absolute and unconditional, instead of contingent. The complainants took by descent, and subject to the incumbrance of their ancestors; wherefore they are not entitled to have the deed of trust canceled. Jarman on Wills, secs. 6, 7(c.) 17, p. 519 et seq.; Nellis v. Nellis, 99 N. Y., 505 (3 N E., 59); Buel v. Southwick, 70 [201] N. Y., 581; Code 1892, §§2435, 2436; Jarman on Wills, seo. 3 (c.) 29, p. 946 et seq.; Busby v. Rhodes, 58 Miss., 237; Carr v. Porter, 1 McCord Eq., 60. Decree affirmed.