Smith v. Muse

Anderson, J., delivered the opinion of the court. This is an appeal from a decree of the chancery court of Madison county to settle the principles of the cause. The question involved is the correct construction and effect of item 4 of the will of James L. Muse, deceased. The trial court rejected the construction contended for by appellants and adopted at least in part that contended for by the appellees. The estate involved is land alone. Item 4 of said will follows: “Item 4. I wish all the remainder of my property of whatever kind, real, personal or mixed, to be divided equally between my said wife and all my children by her begotten, share and share alike, and should any of my said children die leaving no heirs of their body suy [834] viving them, or descendants of such heirs, then it is my wish and will that the portion of my estate bequeathed to any such shall revert and go to the survivors of my said children, and my said wife, in equal shares.” The testator left surviving him his widow and six children. It is at once apparent that' the widow took in fee on the death of the testator a one-seventh undivided interest in the estate attempted to be disposed of by said item 4 of the will. That is not questioned. The controversy is solely around the estate taken by the children. Appellants contend that said item 4 is violative of the two donee statute, section 2765, Code of 1906 (Hemingway’s Code, section 2269), and that the result is that the widow and children took the estate covered by said item 4 in fee, share and share alike. ' The two donee statute referred to above prohibits estates in fee tail and provides that every such estate shall be treated as in fee-simple, “but 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.” In order to determine whether the statute is violated by this item of the will, it is a matter of first importance to understand the purpose and intention of the testator as therein expressed. As appears to the court, there is little difficulty in arriving at the intention of the testator. The language used is so clear that the purpose of the testator seems manifest. By this item the testator gave the residue of his estate to his widow and six children in fee, share and share alike. Then follows a clause by which he undertakes to cut down the fee or make the estate granted defeasible during the period from the daté of his death until there is left only one surviving child, during which period the fee in the share given each child is subject to be defeated upon his or her death without issue, for it provides that in that event the surviving widow and children.take the share of such decedent share [835] and share alike, the widow in fee and the children as their original shares came to them., subject to be defeated on death without issue, and this result is to be repeated on the death of each child without issue down to and including the fifth, at which time the last surviving child and the widow take the estate remaining in fee, which would be all of it provided the deceased children had died without issue; otherwise, if any or all of them had died leaving issue surviving. It was plainly the purpose of the testator that during said period no interest whatever in his estate should go to any except his widow and children and descendants of the latter. It is also evident that his purpose would be defeated if on the death of a child the survivors took a fee absolute in his or her share, for in that event on the death of any survivor thereafter without issue his or her share might go to others not descended from the testator. Putting it differently, the testator gave his wife and six children, all of whom survived him, the residue of his estate in fee. Then by another clause he undertakes to make the fee so given contingent as to the children’s shares until there is only one child surviving. The donees, it is true, were all in being; that is not the trouble. It is that there were more than two successive donees or classes of donees. The testator went beyond the limit of the statute. To illustrate: The share of the child first dying without issue, if one should so die, one-seventh would descend in equal shares to the widow and surviving five children, the widow taking her share in fee, the children theirs as they took their original shares, subject to be defeated on death without issue. If the next dying should leave issue, his or her share would go to such issue in fee. And so on if the whole five should die alternating between leaving and not leaving issue, the result of course, would be at each death a definite state of title to the property. But if all five should die without issue, the title would be in a radically different definite state, and so it would if they should all die leaving issue. In other words, on the death of [836] each, of the five children first dying, there is left a class of donees, one succeeding the other of course, each of which may sustain an entirely different relation to the title to the property disposed of from that of its predecessor. Redmond v. Redmond, 104 Miss. 512, 61 So. 552, does not sustain-a contrary view. By the will in that case the testator simply gave his seven children a life estate measured by the life of the longest liver. The court held that on the death of each child the survivors were not successive donees in the sense of the. statute, but that all seven constituted one donee, and therefore the will did not violate the two donee provision of the statute. This case is ruled by Hudson v. Gray, 58 Miss. 882. Gray, in his work, The Buie against Perpetuities (2d Ed. section 423), states the rule thus: “Although the construction to be put upon an instrument is not affected by the existence of the rule against perpetuities, yet when there is a good absolute gift, and the settlor or testator goes on, in an additional clause, to modify the gift, and, by modifying it, makes it, in part, too remote, the modification is rejected in toto, and the original gift stands.” We hold therefore that the fee granted in the first clause to the wife and' children share and share alike stands, while ■ the last clause, which undertook to cut down the fee in certain contingencies, is void because violative of the two donee statute. Reversed and remanded.