Redmond v. Redmond

Reed, J., delivered the opinion'of the court. The appeal in this case is for the purpose of obtaining a construction of a will. John S. Redmond died February 6,1910, leaving a last will and. testament in which'- he disposed of certain real and personal property. The will, [531] with codicil thereto, was probated in common form before the chancery clerk. At the ensuing term of the chancery court some of the grandchildren of testator, the children of his deceased children contested the will. It is shown in the final decree that the will was properly executed, that Mr. Redmond had full testamentary capacity, and that it was agreed by all parties that the chancellor should hear and decide the case as if a bill for construction had been filed and a general demurrer had been interposed thereto. The following is the part of the will presented for our construction: “Fourth: I devise and bequeath to my four sons, Robt., Jerry, Squire and Jason Redmond, and my three daughters, Martha Jane Redmond, Frances Binford and Elizabeth Sanford, during their lives, equal shares in the following real and personal estate: The plantation now occupied and resided upon by me, less that portion otherwise disposed of in this will, all of my farming implements, stock and other personal property not otherwise disposed of, and in the event of the death of Robert, or either one of my seven children named herein, then the property devised to him shall go to my remaining children to be equally divided between them, it being my desire and intention that my property shall pass over to my living children, and after the death of my last child, then the property devised shall go to his children, and if he or she has no children then the property is to be equally divided among my grandchildren living. ’ ’ The part of the codicil which qualifies the foregoing item of the will is as follows: “And at the death of any one or more of my seven children, his or their part of the property, real and personal, shall be equally divided between my surviving children, and after the death of my last child, whether he has children or not, the property must be equally divided' among all my living grandchildren, and it is my desire that this codicil be annexed to and made a part of my last will and testament as aforesaid, to all intents and purposes.” [532] Mr. Redmond gave the property he mentions to ■ his seven children for their lives. "When all of them shall die — that is, when the last survivor dies — it goes to all of his living grandchildren in equal parts. Each of his seven children received a life estate as soon as he died. He did not intend that any of his grandchildren should receive any part of the property so long as any of his seven children were living. He intended that the property should remain in the possession of and enjoyment of his children named and of the survivors of them till the last died, and he therefore provided that at the death of each, his or her share should he equally divided among the survivors. He made one devise to all of his children— one gift to all — to extend as long as the life of the longest liver. The chancellor decided that this devise was in violation of section 2765', Code of 1906, “in that it devises property in succession to more than two living donees. ’ ’ He decreed that the provision in the will was void, and that the property therein described descended to Mr. Redmond’s heirs at law as though he had died intestate. Section 2765, referred to, is as. follows: “Estates in fee tail are prohibited; and every estate which, but for this statute, would be an estate in fee tail, shall be an estate in fee simple; but any person may make a conveyance or 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.” We believe that the chancellor was in error in his construction of the will. We do not see that Mr. Redmond’s will is in violation of the statute of this state against perpetuities. There is not a succession of donees in the devise to his seven children. The property is given to all of them together. There is one gift: The estate in the property disposed of is a life estate. The term of this life estate is the length of the life of the longest liver. This is [533] not a devise of all of the property to one child for his life, and at his. death to another child, and so on successively to the end. The life of each child is not to be counted in the succession of donees, but only that of the longest liver. It was Mr. Redmond’s purpose that his seven children named, and as each one shall die, the survivors., should ■own and use the property during their lives and until the death of all of them. He desired that so long as any of the seven lived the property should belong to such of them as were living. And then at the end, when all of his children shall have died, the property goes to his grandchildren, his right heirs, in fee simple. The will is -clearly expressed. The intention of the testator can •easily be understood. It is not violative of the law. The •children get the life estate; the grandchildren the fee. The law relating to the questions in this case is fully presented and discussed in the case of Henry v. Henderson 60 South. 33, and we now make special reference thereto. Reversed.