Branton v. Buckley

Smith, J., delivered the opinion of the court. Appellants, the heirs at law of Emily B. Ferrell, deceased, formerly Emily B. Wylie, filed their bill in the court below to establish their claim to an interest in, and praying for a partition of, certain land. From a decree dismissing the bill, this appeal is taken. The land in controversy was devised by William M. Wylie to his wife for life, with remainder to his brothers and sisters; the language of his will being as follows: “To my beloved wife, I give, bequeath, and devise one-half of my real estate, to-wit: [Here describing same], and all the appurtenances situated thereon. And that she have, hold and enjoy the products and privileges of the above described lands during her natural life. And after her death that it be divided, share and share alike to my brothers and sisters.” (1) Mrs. Wylie is now dead. Appellant’s ancestor, Mrs. Ferrell, was living at the death of her brother, William N. Wylie, but died prior to the death of Mrs. Wylie. This remainder over after the death of the life tenant, devised by Mr. Wylie to his brothers and sisters, being a gift to a number of persons not individually named, but all answering a general description, is a .gift to them as a1 class. (2) Generally, in the absence of a contrary intent, the persons constituting such a class are to be ascertained [123] at the period of distribution — in the case at‘bar, the death of the life tenant. In the will now under consideration, no such contrary intent appears. Whether appellants •are entitled to a share in this estate depends upon the time when the estate vested in the members of the class. If no interest vested until the termination of the life ■estate, then only those members of the class in being at ■that time can share in the distribution. (3) The law favors the vesting of estates at the earliest moment, and generally, where a contrary intent .does not appear, devises of the character now under consideration 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 afterwards ■come into existence before the date fixed for the ascertainment of the'members of the class. As stated by the editor of American State Beports, in note to Thomas v. Thomas, 73 Am. St. Rep. 413: “It must be admitted that the cases are somewhat confusing on this point, failing to discriminate between a devise which vests immediately, the enjoyment of which only is postponed, and a devise which is contingent, because both the vesting in interest and enjoyment are postponed.” (4) -Where the devise to a class vests immediately upon the death of the testator, it is attended by all of 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. The foregoing views are supported by many authorities, most of which will be found collated in 2 Jarman on Wills (6th Ed.), 1667, 1668, 24 A. and E. Encyc. Law (2d Ed.), 382, 383, and note to Thomas v. Thomas, 73 Am. St. Rep. 405. The only one of our decisions bearing upon the matter which has come under our observation is Nichols [124] v. Denny, 37 Miss. 39, in which, only one feature of the rule above announced was under consideration. Quite a number of cases are cited in the brief of counsel for appellees as supporting their contention, but an examination of most of them discloses that they are not. in point, for the reason that the courts reacted their conclusions by the aid of special features contained in the particular wills under consideration. The judgment of the court below is reversed, and the cause remanded. Reversed and remanded„