Middlesex Banking Co. v. Field

Whitfield, O. J., delivered the opinion of the court. The chief question for solution is, Is the limitation over of the ultimate fee to J. Harris Field, Sr., by the deed of August 30, 1890, valid ? That deéd is as follows: “This deed of conveyance, made and executed at Florence, Ala., on this 30th day of August, 1890, by and between Eldon C. Field, hereinafter designated as the first party, and J. Harris Field, Bate Field, and J. Harris Field, Jr., hereinafter designated as the second parties, witnesseth: That the first party, for and. in consideration of the natural love and affection which he has for the second parties (his brother, niece, and nephew), does hereby bargain, sell, and convey to the said J. Harris Field, in trust for the said Bate Field and J. Harris, Jr., the following lands: [Here follows a description of the four plantations in controversy.] To have and to hold the said lands, with all and singular the appurtenances thereunto belonging, unto the said J. Harris Field as trustee as aforesaid, upon the trusts and conditions as herein provided — that is to say: — 653 — “1. That the first party shall have and retain during his natural life the exclusive right to the possession of all of the said lands, and shall have the entire management and control of the same, ánd shall be entitled to all the rents, income, and profits arising therefrom as fully as if he were the absolute owner of the lands. “2. That on the death of the first party, the said J. Harris Field, as trustee aforesaid, shall take possession of all of said lands, and shall manage and control the same during his natural life, and shall receive for his services as such trustee one-third of the rents, incomes, and profits of said lands. During the minority of the said Bate Field and the said J. Harris Field, Jr., the said trustee shall use the remaining two-thirds of the rents, incomes, and profits of the lands for their maintenance, support, and education, or he may hold, use, or invest the same as he may deem fit for their interest, and he shall not be liable for any loss that may occur in the management and control of said trust property or of the rents, incomes, and profits thereof, it being the intention of this deed to give said trustee large powers and discretion. The said trustee, J. Harris Field, after the death of the first party, may, if he deems it advisable, sell or .exchange said lands or any part thereof, and, in case of sale, shall reinvest the proceeds in other property, which, together with any property received in exchange for said lands or any part thereof, shall be held subject to all trusts and conditions and terms of this deed as fully as if incorporated herein, and he shall have like authority and powers as to the property received in exchange and the property in which the reinvestment is made; and it is hereby expressly provided that purchasers from said trustee shall not be chargeable with seeing to the application of the purchase price received by said trustee for any property sold or exchanged, it being the intention hereof to give said trustee as full power and authority in making sales and conveyances as if he were the owner of the property. — 654 — “3. On the death of said J. Harris Field all the property herein conveyed and all property hereafter acquired hereunder shall vest in the said Bate Field; one-half for herself, and the other half she shall hold in trust for the said J. Harris Field, Jr. She shall pay to the said J. Harris Field, Jr., annually one-half the net income, rents, and profits of such trust property, and she shall not be liable for failure to make said property productive nor for any loss that may occur in the management and control of the trust property or of the rents, incomes, and profits thereof. She has full power to make all needed and convenient improvements and repairs on said prop- , erty and to apply the income and profits to the payment thereof,’ and she shall be the judge of what improvements and repairs are needed and convenient. “4. Should the said Bate Field or J. Harris Field, Jr., die without issue of the body, the whole property herein conveyed shall vest in the survivor, subject to the rights of the said J. Harris Field hereinbefore mentioned; and in case both shall die without issue of their bodies, the whole property shall vest absolutely in the said J. Harris Field or his heirs at law if he be then dead. “Given under my hand and seal this day and year above written. “Eldon C. Field. “Attest: Chas. O. Rolfe.” (Acknowledged August 30, 1890, and filed for record September 3, 1890.) The statutes which bear upon this question are as follows: Rev. Code 1880, § 1189: “Every estate in lands, granted, conveyed, or devised, although the words deemed necessary by the common law to transfer an estate of inheritance be not added, shall be deemed a fee simple, if a less estate be not limited by express words, or unless it shall clearly appear, from the conveyance or will, that a less estate was intended to be passed thereby.” — 655 — Rev. Code 1880, § 1190: “Estates in fee tail are prohibited; and every estate which shall create an estate in fee tail shall be an estate in fee simple; provided, that any person may make a conveyance or a devise of lands to a succession of donees then living, not exceeding two; and to the heirs of the body of the remainderman, and, in default thereof, to the right heirs of the donor, in fee simple.” Rev. Code 1880, § 1201: “A conveyance or devise of land or other property to any person for life, with remainder to his heirs or heirs of his body, shall be held to create an estate for life in such person, with remainder to his heirs or heirs of his body, who shall take as purchasers, by virtue of the remainder, so limited to them.” Rev. Code 1880, § 1203: “Every contingent limitation, in any conveyance or will, made to depend upon the dying of any person, without heirs, or heirs of the body, or without issue, or issue of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted as a limitation to take effect when such person shall die not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared on the face of the instrument creating it.” Rev. Code 1880, § 1197: “All conveyances or devises of lands made to two or more persons, or to a husband and wife, shall be construed to create estates in common, and not in joint tenancy or entirety, unless it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint tenancy, with the right to the survivor or survivors; provided, this provision shall not apply to mortgages or devises or conveyances made in trust.” It is clear that Eldon C. Eield excepted from and reserved out of the operation of this deed a legal life estate for himself, — 656 — from which it follows that he cannot be counted as one of the donees within whose life the ultimate fee must vest. It is earnestly insisted by counsel for appellee that no legal life estate was left in Eldon C. Field after the execution of this deed; but that J. Harris Field, Sr., held the whole legal title, and held it as much for Eldon Field as for Bate and Harry — in other words, that Eldon C. Field limited an equitable estate for life to himself by this deed. Counsel counts on this language — to wit, “To have and to hold the said lands, with all and singular the appurtenances thereunto belonging, unto the said J. Harris Field, Sr., as trustee as aforesaid, upon the trusts and conditions as herein provided,” etc.; but the language of the first clause clearly shows that what Eldon C. Field did was- to reserve a legal life estate. He “retains” during his own life the “exclusive right to the possession of said property;” and he is to have the “entire management and control of the same as fully as if he were the absolute owner of the lands.” J". Harris Field, Sr., is not t'o enter upon the possession of the property until the death of Eldon C. Field. The plain meaning, manifestly, is that Eldon C. Field reserves a legal life estate. We think the scheme of the deed was this: (1) To reserve to Eldon C. Field a legal life estate; (2) to convey the property after his death to Bate and Harry Field, with cross-limitations between them if either should die without issue living at his or her death; (3) to convey the ultimate fee in the property, if both Bate and Harry should die without issue living at the time of their respective deaths, to J. Harris Field, Sr. Bate and Harry took fees determinable upon the contingency of dying without issue living at his or her death, with a conditional limitation over to J. Harris Field, Sr. Busby v. Rhodes, 58 Miss., 237; Halsey v. Gee, 79 Miss., 193 (30 South., 604); Brattle Square Church v. Grant, 3 Gray, 142 (63 Am. Dec., 725) — a masterly exposition of the law as to conditional limitations. — 657 — At the common law, under sec. 4 of the deed, “in case both shall die without issue of their bodies, the whole property shall vest absolutely in the said J. Harris Field,” etc., the words “without issue of their bodies” would have imported an indefinite failure of issue, and they would have taken at common law only a fee tail by the conveyance; and the effect of § 1203, Rev. Code 1880, providing that the words “without issue of the body” in clauses like this shall be held and interpreted as a limitation to take effect when such person shall die without issue of the body living at the time of his death, etc., is to prevent the estate conveyed to Bate and Harry from becoming a fee tail. The limitation to J. Harris Field, Sr., is a conditional limitation over after the death of Bate and Harry, both, leaving no issue at their respective deaths. Such a conditional limitation does not cut down the estate in fee. It takes effect only at the termination of the prior estate, and neither extends the prior estate nor accelerates its termination. Brattle Square Church v. Grant, supra. Bate and Harry took estates in fee, determinable upon the contingency of their dying without issue at the time of their deaths, respectively. It will not be out of place just here to look a little into the history and reason of this § 1203, Rev. Code 1880. The old construction defeated the intention in this way: Take a case: A. devises Blackacre to B. and the heirs of his body, and, if B. dies without issue (etc.), over to C. and his heirs. The intention of the devisor is to create an estate tail, and he meant the property to go to the heirs of B.’s body as long as there were any. The construction put on the words “die without issue” by the courts was in the line of this intention — to wit, that they meant not only issue of B. living at B.’s death, but any issue of B. — grandsons, great-grandsons, etc.- — as long as any descendants of B. were living; and hence that there were two contingencies, on the happening of either of which the limitation to C. should take effect — to wit, failure of B.’s issue — 658 — at B.’s death, and, second, failure of B.’s issue at any time in the future. The contingency was uncertain and indefinite — i. ethe failure of issue was so — as no man could tell when the issue would fail, and it might never fail; and hence that the limitation to C. was not to take effect until B.’s descendants ultimately at an indefinite time failed. So far the intention of the testator was being carried out; but the courts, thus construing the words, of course gave B. an estate tail, and this he could bar, and acquire a fee simple, and sell the lands, and his heirs would not, take what the devisor meant; and this resulted in a defeat of the devisor’s intention. It is plain that it was not the construction of the words “die without issue” alone, that defeated the intention of the devisor, but the right given by law to bar the estate tail resulting from such construction. The two together operated the defeat of the devisor’s intention, who meant an estate tail, and was ignorant of the law allowing it to be barred by his devisee. Again, in the case stated, if B. died, leaving his wife enceinte of a son, he was esteemed at common law to die without issue living at the time of his death; or, if he had had one son, who married, and died, leaving his wife enceinte of a son, and then B. died before the birth of the grandson, he was esteemed to die without issue living at the time of his death (the ten months, afterwards put in by statute, not being by common law allowed) ; but in both cases B. had issue, though not living at the time of his death — in one case a son, in the other a grandson, who might have indefinite issue;' and the issue was thus indefinite upon whose failure it was held the limitation over to 0. was to take effect, and hence an estate tail was the result, as above stated. Now, the only effect of the ten months added by the statute is to characterize the son or grandson en ventre sa mere as living at the death of B., and to put such son or grandson in — 659 — the same position he would have been in if he had been actually born, and not en ventre sa mere, at B.’s death. Before this statute, if the courts had held that C. was to take if there was no issue of B. living at B.’s death, C. would have taken in exclusion of the son or grandson supposed above en ventre sa mere. Since that statute it is not possible that C. could, take (if estates tail were allowed) while there is any descendant of B. en ventre sa mere at the time of B.’s death (for all children are born within ten months). Now, if B. has issue living at his death, or born within ten months thereafter, such issue takes a’ fee simple, and the limitation over is void. If B. dies without issue living at the time of his death, or born within ten months thereafter, C. takes, unless A. plainly says in his will he does not mean C. to take while B. has any descendants living; and in this case (and in this case as in an estate tail that is created by the will) the statute converts it into a fee simple in B. himself, who may sell it, and cut out his heirs, the objects of the devisor’s bounty. The difference is this: If the devisor does not plainly declare in the will that he never means C. to take while B. has any descendants living, the words “die without issue” mean “die without issue living at his (B.’s) death, or born in ten months thereafter,” and the result is a life estate to B. and a fee simple, by way of ex-ecutory devise, to B.’s issue living at his death, or bom in ten months thereafter. The grandchildren -(or other descendants) are protected, and the devisor’s intention effectuated as far as it can be. If B. has no such issue when he dies, C. takes, and this carries out also the devisor’s intention. But if A. does so plainly declare, then he attempts to create an estate tail, which (as the result of his ignorance of the law) is a fee simple in B., and his intention is defeated. Statutes _ changing this old construction are of two kinds— those, like that of New York, which imperatively say in the case supposed that the words mean “die without issue living at — 660 — the time of his death, or bom in ten months thereafter;” and, second, those, like ours, which merely change the presumption, and shift the burden of proving that A. meant an indefinite failure of issue upon A. by making him so declare in his will. The old construction never obtained in Ohio (American L. C. R. P., p. 490), and in Georgia it is held that it was an erroneous construction of the statute de donis by the English courts, in harmony with their peculiar rules of property, primogeniture, estates tail, etc. English courts construe according to their customs; American courts should favor executory devises to carry out the intent. “Heirs” or “issue” may be so used as to mean “children,” in which cases the statute does not apply, is unnecessary, and a definite failure is intended; and so where devise over is on the death of B. without issue, before a certain person dies, etc., or where it is if B. dies unmarried and without issue, the limitation is defeated even if B. marries and has issue; or where the devise is that on the death of the first taker, B., without issue, the executors of devisor shall sell, etc., the failure meant is indefinite, and the limitation fails. See Williams on Real Property, p. 214; and Leading Cases on American Law of Real Property, Sharswood & Budd, vol. 2, p. 489, et seq. Returning from this discussion of the history and reason of § 1202, Rev. Code 1880, we find ourselves advanced thus far in the construction of this deed: (1) It is clear that Eldon C. Field is not to be counted as one of the donees within whose-life the ultimate fee must vest. (2) That under sec. 4 of the deed Bate and Harry took fees determinable upon the contingency of their dying without issue living at the time of their respective deaths., (3) In case they should so die, the ultimate fee was limited over to J. Harris Field, Sr. The remaining question to consider in determining the validity of the limitation over to J. Harris Field, Sr., is whether,under § 1190, Rev. Code 1880, this limitation over of the ulti — 661 — mate fee to J. Harris Field, Sr., specifically, is one that may be validly made, in lieu of one to tbe right heirs of the donor, generally, without specification. J. Harris Field, Sr., was the right heir of the donor. Bate and Harry both died without issue living at the time of their respective deaths. There were, therefore, no heirs of the body of the remainderman. Bate and Harry would both have an estate of an undivided half interest in a determinable fee upon the death of Eldon C. Field, with cross-remainders between them, in favor of the' survivor of them; and in case of the death of both without issue there was a limitation over of the ultimate fee to J. Harris Field, Sr. Bate Field and, mutatis mutandis, J. Harris Field, Jr., would each be donee of that half interest. Then upon the death of either without issue living at the time of the death, the survivor would take the half interest of the one so dying. This survivor would be, as to his or her original half interest, a second donee, and there would then remain the limitation over to J. Harris Field, Sr., who was the -heir at law of the grantor. As to the original half interest held by the survivor, J. Harris Field, Sr., would be the second donee; and as to the half interest accrued to the survivor, J. Harris Field, Sr., would claim as being— expressly within the language of the statute — the heir at law of the donor, there being a default of heirs of the remainderman. It is very ingeniously and ably argued for appellant, in opposition to the validity of this limitation over to J. Harris Field, Sr.: (1) That under § 1190, Rev. Code 1880, the limitation to the right heirs of the donor must be to them generally, and not specifically to one of them; and that no such limitation over any third person can be made in lieu of a limitation to heirs of the body of the remainderman. (2) That the words “any person may make a conveyance or a devise of lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainderman, and, in default thereof, to the right heirs of the donor,” mean that the words — 662 — “and to the heirs of the body of the remainderman” were applicable alone to a devise, and not to a deed. (3) That the words “to the right heirs of the donor in fee simple” mean that the estate is to go to the heirs of the donor by descent, and not by purchase, by operation of the terms of the deed. (4) That sec. 1190 does more than the rule against perpetuities did— to wit, that it declares not only when the ultimate fee must vest, but the number of those to whom precedent estates may be limited; and since, as contended, a valid limitation of the ultimate fee could not be made to J. Harris Field, Sr., in lieu of the heirs of the remainderman, J. Harris Field, Sr., is to be treated as a third limitee in number, and hence that the limitation is to be declared void as too remote. In answer to the first proposition, it is to be said that in Busby v. Rhodes, 58 Miss., 240, and Cannon v. Barry, 59 Miss., 299, and Halsey v. Gee, 19 Miss., 193 (30 South., 604), this court has expressly held that a limitation over to a specific person, being one of the right heirs of the donor, is valid; and in this same connection it is enough to say in regard to the fourth proposition above that this court has held in Jordan v. Roach, 32 Miss., 620, and Cannon v. Barry, 59 Miss., 299, that the object of this statute is to specify a time limit beyond which the grantor cannot go, but within which he can exercise unbounded discretion; that the purpose of the statute was to prescribe a limit of time beyond which the vesting of the estate in fee could not be suspended; that the lives of the two donees in being were the measure of time within which the ultimate fee must-vest — in other words, that the statute prescribed a limit of time, and not a formula of conveyancing. In answer to the second proposition above stated, we have only to point to the express language of the statute, § 1190, Rev. Code 1880: “Any person may make a conveyance or a devise,” etc., “to a succession of donees,” etc., “and to the heirs,” etc., “and in default thereof to the right heirs of the donor.” And as to the third — 663 — proposition above set ont, the conclusive reply is that in Busby v. Rhodes and Halsey v. Gee and Cannon v. Barry, supra, this court has expressly held that the right heirs of the donor took by purchase, and not by descent; as limitees under the terms of the deed or will, and not as heirs. It is further to be remarked that many legislatures have met between Jordan v. Roach and Halsey v. Gee, and several codes of law have been adopted in that time; and yet this statute, with these terms in it, has remained through all these years, with the above construction put upon it, unchanged. If anything can have become, in the most solemn form, a rule of property, the construction put upon this statute is certainly such a rule; and it is far too late now to seek to overturn that rule. It is specially to be noted further that, if it had been the legislative purpose that the right heirs of the donor were to take by descent as heirs, apt words to express that purpose could easily have been used — as, for example, “to revert to the hgirs of the donor;” whereas, on the contrary, this statute repeats and repeats the word “to,” as pointed out above: “to donees,” “to heirs of the body,” “to the right heirs of the donor.” It expressly declares that conveyances or devises can be made to these various categories of persons. It confers a power in derogation of the first clause of the section, and expressly designates the person to whom such deeds or devises can be made. It would be utterly incongruous to use the words, “conveyance to,” in speaking of title cast by descent. Let it be noted again that the changed language of the act of 1822 (Hutch. Code, p. 609, sec. 24), by the code of 1857, ch. 36, art. 3, whereby the words, “to the heirs of the body of the remainderman,” were substituted for the words, “the hew or heirs of the body of the remainderman,” demonstrates that “heirs of the body,” in this clause, were referred to as purchasers; and this was expressly so held in Jordan v. Roach, where the court say: “Whatever interest the donor or devisor may choose to give to the remainderman, where the — 664 — estate is conveyed to a succession of donees, with a limitation over to the heirs of his body, it is certain'it cannot be an estate of inheritance, as the heirs of the body of the remainderman must take, if they take at all, as purchasers, and not as heirs.” No just distinction can be drawn between the language of the statute in the clause between the words, “to heirs of the body,” and “to the right heirs of the donor.” They are alternatives of each other. If there be no heirs of the body of the remainderman, the right heirs of the donor' are held to take as purchasers. • We are, therefore, of the opinion that the limitation over of the ultimate fee to J. Harris Field, Sr., one of the right heirs of the donor, is by the express terms of the statute, and in accordance with the uniform decisions of this court, a valid limitation. It may be confessed that, as insisted by counsel for appellee, the original of this statute (sec. 1190) is obscurely drawn, and that the “original draftsman of the statute had no conception of his own meaning, or of the common-law rules he was displacing;” and the incongruity of dealing, in the same section, with the subjects of fee tail and the rule against perpetuities, is obvious. From this fact follows, doubtless, the difficulty of harmonizing in all respects the decisions of this court in the construction of this statute. The court did not make the statute. It had to deal with it as best it could, being made; just as the court, in Jordan v. Roach, supra, had to treat the act of the 13th of June, 1822, concerning conveyances, as being one expressly intended to abolish estates tail, which the legislature supposed were sanctioned by the law at that time, although the whole doctrine in regard to estates tail and executory devises (which were ingrafted by the English courts upon the statutes of Westminster II, 13 Edward I, called the “Statute de Donis Conditionalibus,” and the Statute of Wills, 32 Henry VIII) never had any existence in this state by any express or positive legislative enactment. All the statutes of England not reenacted in — 665 — Mississippi were, in the year 1807, excluded from operation within the territory of Mississippi. Hutch. Dig., 65. And neither of the two statutes referred to was in force in Mississippi when the act of 1822 was passed, and yet the legislature passed that act supposing they were in force. This court has had to deal with the act of 1822, and with the original of this sec. 1190, as best it could, conceding the obscurity and confusion resulting from the ignorance of the draftsmen. It may further be conceded that it would have been wiser if this court had originally construed this statute, as intended, as a substitute for all common-law rules to which its provisions can apply, instead of as merely amendatory of the common law; but for us it must be enough that the long line of contrary decisions has become now crystallized into a rule of property. It may also be conceded as a sound original proposition that, since the 'term of twenty-one years and the ordinary period of gestation • — -ten months — were added to the term of any number of lives in being, first, as a time added in the event of the minority of the last taker, because, during such minority, he could not alien the estate, and because, second, this extended the period of the rule, and was afterwards added to it as a fixed time without regard to minority, therefore, our statute (said see. 1190) cannot have the period of twenty-one years and ten months added to it, since it fixes by its own .terms the time limit within which the ultimate fee must vest. Certainly it seems true that at the time of the passage of our act of 1822, supra, dealing with this subject, the addition of the period of twenty-one years and ten months as a gross term, regardless of minority, was not allowed in the courts of England themselves. In Loyd v. Carew, Show, P. C. 107, decided in 1698, it was held that a period of one year might be added to lives in being, because no inconvenience could result therefrom. In Beard v. Weatcott, 5 Taunton, 393, thrice argued, it was held that the gross term of 21 years could not be added. This was decided in 1810. — 666 — Gray on. Perp., sec. 184. And it was not until the decision in Cadell v. Palmer, 1 Cl. & F., 411, in 1832, that the rule as now established was finally settled in England — a period of ten years after the adoption of our act of 1822. But whilst that might have been the better holding originally, the direct contrary has been held in Cannon v. Barr, 59 Miss., 289, and Caldwell v. Willis, 57 Miss., 555, and, therefore, this principle has become a rule of property not to be overturned. It will be observed that I have confined this opinion to a ground not touched in the former opinion of this court. Field v. Banking Co., 77 Miss., 180 (26 South., 365). We cannot conclude this opinion without acknowledging our indebtedness to the briefs of counsel on both sides, which are marvels of profound learning, searching analysis, and clear reasoning. It follows from these views that the decree in the court below must be, and is hereby, reversed, and the bill dismissed.