Neblett v. Neblett , 112 Miss. 550 ( 1916 )

Cook, P. J.,

delivered the opinion of the court.

Mrs. Ann S. Neblett, a resident of the state of Virginia, owned a plantation in Bolivar county, Miss., known as “Green Island Plantation.” Section 16, township 20, range 8 west, formed a part of this plantation. Mrs. Neblett died in 1912. Appellants filed a hill in the chancery court alleging that they and appellees were owners in common by inheritance of the Green Island Plantation, and prayed that the land he partited. Appellees admitted in their answer that appellants were entitled to a partition of all the land described in the bill of complaint, except section 16, and denied that appellants had any interest in section 16, claiming that appellees were the exclusive owners of that section. The basis of appellee’s title to section 16 rests upon these facts, viz.: Mrs. Ann S. Neblett, deceased, through whom all parties to this litigation claim, owned the unexpired lease of section 16, and the fee-simple title to the other lands composing Green Island Plantation; Mrs. Neblett made a will, devising to her brother, Norman M. Neb-lett, who died before the testatrix, Green Island Plantation. It was the contention of appellees that inasmuch as Mrs. Neblett was at the time she executed her will, and at the time she died, a resident of Virginia, the legacy to her son of the leasehold interest in the sixteenth section did not lapse, but passed to appellees as the children and issue of Norman M. Neblett, the legatee under the will. This contention of appellees was based upon the theory that the estate in the lease of the sixteenth section was personal property, and. that the devolution of personal property is controlled by the laws of Virginia, the domicile of the testator. The trial court adopted this view of the law, and appellants appeal to this court.

Appellants take the position that the descent of the property in question is governed by our statute, section 5081, Code of 1906, which reads this way:

“Whenever any estate of any kind shall or may he devised or bequeathed by the last will and testament of any testator or testatrix to any person being a child or descendant of such testator or testatrix, and such devisee or legatee shall, during the lifetime of such testator or testatrix, die ■ testate or intestate, leaving a child or children, or one or more descendants of a child or children, who shall survive such testator or testatrix, in that case, such devise or legacy to such person so situated as above mentioned, and dying in the lifetime of the testator or testatrix, shall not lapse, hut the estate so devised or bequeathed shall vest in such child or children, descendant or descendants, of such devisee or legatee, in the same manner as if a legatee or devisee had survived the testator or testatrix, and had died unmarried and intestate.”

The statute just quoted avoids the lapse of the legacy only when the legatee or devisee is “a child or descendant of the devisee or legatee,” while the Virginia statute goes further and avoids a laps.e in all cases. The Virginia statute is section 2523 of the Virginia Code of 1904, and provides:

“If a devisee or legatee die before the testator, leaving issue who survived the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof he made or required by the will.”

The question we are to decide is the unexpired leasehold of the sixteenth section governed by the statutory law of Virginia, or by the statutes of our state. It 'is pointed out in the briefs of appellants that the laws of this state referring to the administration of estates are 'sui generis. It seems that in other states, in which list Virginia is included, when a resident dies owning personal property in another state, the rule is to administer the personal property through an ancillary administration, and after the debts are paid, if there be any surplus in the ancillary administration, the surplus ■ is remitted to the domiciliary administration for administration there. On the contrary, as held -by this court in Partee v. Kortrecht, 54 Miss. 69, ancillary administrations have been abrogated in Mississippi by our statutes.

Again, we quote from the opinion of this court, in Carroll v. McPike, 53 Miss. 569, viz.:

“The general doctrine, as declared by Story, in Conflict of Laws, section 518, is that an administration in any other country than that of the domicile of the deceased is treated as in its nature ancillary merely to that in the country of the domicile, because ‘the final distribution -of his effects among his heirs or distributees is to he decided by the law of his domicile.’ This reason wholly fails in its application to this state, and the doctrine built •on it is entirely subverted by our statute, declaring that personal property situated in this state shall descend and be distributed according to the laws of this state, notwithstanding the domicile of deceased may have been in another state. Code, section 1950. In this state, administration of the effects here. of a deceased person, no matter where his domicile was, is independent of all other administrations, and to be conducted in all respects as if the decedent had been a citizen of this state when he died. Debts are to be paid according to the assets, and any surplus is to be distributed here. All creditors, no matter where residing, or where the debts were contracted, are entitled to prove their claims here, and proceed in our courts to enforce them, and to share in the assets here. There may be inconveniences, and sometimes hardships, resulting from this doctrine; but it plainly results from our system, as established by statutes, and we cannot shrink from declaring it, whatever may be the consequence.”

So we find that our statutes put Mississippi under a rule different from the rule adopted by other states. The property to be distributed in this ease may he termed “tangible personalty” — and as such it is located in this state 'and forms a part of the ‘ ‘ Green Island Plantation.” The leasehold is a part of the soil of the state held in trust by the state for the purpose of education. This estate is assessed on the land rolls; the state may not sell the trees growing on the land without the consent of the lessee; the lessee may destroy all of the timber and dispose of samé, if it he necessary to good husbandry. The' property owned by Mrs. Neblett, while a chattel real, has many qualities not applicable to ordinary leaseholds. Finding a lapsed legacy according to our statute, what rule should be followed in distributing the estate of the intestate, and, particularly, the leasehold in the sixteenth section1?

We have reached the conclusion' that the statutes of this state control the disposition of this property, and that the chancellor erred in refusing to partite same among the heirs at law of deceased.

Reversed and remanded.