Dean v. Wall

Atkinson, J.

Mrs. Malinda Hargrove having four children in life, two of whom were married and had children, and two unmarried without children, executed a deed on November 29, 1876, to one of the latter, namely, Miss Malinda Hargrove. One of those having children was R. T. Hargrove, whose only living child at the date of the deed was Claude B. Hargrove. The deed was executed upon consideration of natural love and affection and five dollars in hand paid. It purported to convey unto Miss Malinda Hargrove, her heirs, and assigns described land, “subject to the following conditions: That in the event of Miss Malinda Hargrove dying and leaving no children, then in that event the above-described property shall revert or go, back into the possession of my other children, or, in ease of their death, then to their children, share and share alike; and further, that Mrs. Malinda Hargrove shall have the entire use and control of the above-described property during her lifetime.” Mrs. Malinda Hargrove died, and Miss Malinda Hargrove took possession of the prop-' erty. R. T. Hargrove died, leaving his child, Claude B. Hargrove. Alter the death of his father and while Miss Malinda Hargrove was still in life and in possession of the property, Claude B. Hargrove executed a warranty deed to W. J. Westj purporting to convey “ whatever interest he had or might have in said property,” and himself died during the life of Miss Malinda Hargrove, and while she was in possession of the property. Subsequently Miss Malinda Hargrove died in 1920, without having had any children. Held:

No. 3145. December 15, 1922. Lamar Gamp, Union A. Dean, and Little, Powell, Smith & Goldstein, for plaintiff in error. J. Mallory Hunt, contra.

1. Properly construed, the deed first above mentioned conveyed to Miss Malinda Hargrove a vested defeasible fee, subject to be divested in the event of her dying and leaving no children.

2. Any estate that might devolve upon Claude B. Hargrove was contingent upon the uncertain events of Miss Malinda Hargrove dying without children, and R. T. Hargrove dying pripr to the death of Miss Malinda Hargrove, and Claude B. Hargrove surviving Miss Malinda Hargrove.

3. As Claude B. Hargrove, though having survived his father, R. -T. Hargrove, died prior to the death of Miss Malinda Hargrove, no title ever vested in him; and consequently the deed executed by Claude B. Hargrove to W. J. West did not convey title to any interest in the land.

4. In a suit by the widow and sole heir at law of W. J. West, instituted upon the death of Miss Malinda Hargrove, to recover an undivided interest in the land on allegations as to title as indicated above, the court erred in refusing to dismiss the petition on general demurrer. . Judgment reversed.

All the Justices concwr, except Hill, ■/., dissenting.