Scott v. Turner

Sykes, P. J.,

delivered the opinion of the court.

John Milton Scott, a. resident of Shelby county, Tenn., in 1902 made and executed his last will and testament and died a few days thereafter. In this case we are called upon to construe item 3 of this will, which is as follows:

“I have some notes secured by mortgages and also some other notes and accounts due me by various parties. I wish my executors to collect these as soon as they can without causing too great distress or embarrassment to my debtors, and I give my executors authority to grant these debtors reasonable indulgence if in their opinion it can be done without endangering the debts.

“I also direct my said executors to rent out my lands in Tunica county, Mississippi, and out of these rents pay my wife five hundred dollars annually on the 1st day of December of each year so long as she lives.

“The balance of said rents after payment of taxes, and necessary repairs and expenses, and all amounts collected from my notes and accounts, after the payment of my debts and the expenses of administering my estate, I direct my executors to invest in lands taking title to themselves as trustees of my estate. I recommend to them that these investments be made in lands near mine in Mississippi, but want them left free to use their own judgment as to such investments.

“I want my Mississippi lands and all lands bought by • them held until twenty years after my death and at the end of that period I direct that all such lands and all monies then on hand arising from rents of said lands be disposed of as follows:

“If all my children shall be living at that time, or if any that may have died should have left children or grandchildren surviving them, I want all these lands and monies then belonging to my estate divided into six (6) equal shares and one of said shares given to the children of each of my children or descendants of such children, each family of children taking an equal interest without regard to their number. And the representatives of each of my six children taking an equal one-sixth interest in my estate then on hand. However if when this division is made, some of my six children then living have no children, these are to receive the share which would go to their children, if any, subject however to the restrictions and qualifications hereinafter stated.

“If by that time, any of my children shall have died 'leaving no issue, then the number of shares into which my property then on hand is to be divided is to be reduced proportionately, my wish and desire being that the share and interest of such child or children so dying without issue shall revert to my estate, and be disposed of as hereinbefore directed in the present item.

“Likewise if any of my children should die after the above-ordered division is made, leaving no issue at their death, then and in that event, I wish and direct that the shares and interest of such children so dying without issue in the property mentioned in this item shall also revert to my estate and go to the children of their sisters and brothers or to such sisters and brothers themselves if any,such have no children to be held by such childless brothers and sisters subject to executory devise in favor of my descendants in the event of their dying without issue.

“I want it clearly understood that this division directed to be made twenty years after my death is intended principally and primarily for the benefit of my grandchildren, and none of my children can participate therein except such as have no children and these only to the extent of taking their share and interest subject to an executory devise in favor of any descendant in the event of their dying without issue at their death.”

In item 2 he had devised.and bequeathed certain property to his children. At the time of the death of the testator he had living four childless children. At the end of the twenty-year period after his death he had living three childless children.

One of the testator’s children, Dr. Glen Scott, had born to him a son within nine months after the twenty-year period expired. We are therefore called upon to decide whether or not this son, John Milton Scott, was devised an undivided one-sixth interest in fee by this item of the will. Under the authority of Harper v. Archer, 4 Smedes & M. 99, 43 Am. Dec. 472, John Milton Scott, grandson of testator, was in esse at the end of the twenty-year period and therefore entitled to an undivided one-sixth interest in fee in the estate devised in this item of the will. It was so held by the learned chancellor in the court below.

The three childless children at the end of the twenty year period are O. M. Scott, Malvina Scott, and Mrs. Laura Strickland. The other children of the testator had children living at the end of the twenty-year period, and the chancellor correctly held that these grandchildren of the testator under the will were devised an undivided one-sixth interest per stirpes in this estate. There is no controversy as to the interest devised these grandchildren. The controversy here is about what interest was devised the above-named three childless children under item 3 of this will.

Briefly stated, it is the contention of the appellee that under this item of the will these three childless children were devised life estates for the life of the longest liver with remainder over to their children, or if they were still childless at the time of their death to the other grandchildren of the testator or their descendants. For this contention reliance is principally had upon the case of Redmond v. Redmond, 104 Miss. 512, 61 So. 552.

It is the contention of the appellant that the three childless children are devised a fee determinable on the birth of issue to them, or at their death, with a one-sixth similar fee of this estate to the childless children living at the time of the death of the first childless child, and with a similar devise to the third and sole remaining childless child at the time of the death of the second childless child. Or in other words, that there is a succession of donees exceeding two, namely, three donees, at the end of the twenty-year period, which violates section 2765, Code of 1906, section 2269, Hemingway’s Code, commonly known as the two donee statute. The learned chancellor held that this item of the will did not violate the statute, and' that these three childless children were devised life estates by this item of the will. In the hands of the executor uninvested in real property at the time this suit was filed was about twenty-five thousand dollars, which the court correctly treated as real property because the executor under this item of the will was ordered to invest this money in real property.

We have examined with great care and with a great deal of interest the very able briefs of learned counsel in this cause. It is, of course, axiomatic that the court should be controlled in construing the will by the intention of the testator which should be gathered from the entire will, and that effect should, be given to this intention if not violative of the law.

In this item the testator says that it is made primarily for the benefit of his 'grandchildren, and that none of his children can participate except such as have no children, and those only to the extent of taking their share and interest subject to the executory devisees. It is therefore plain that the primary intent of item 3 of this will was to provide for his grandchildren. The secondary intent is to provide for the childless children at the end of the twenty-year period. This item provides that these lands and moneys at the end of the twenty-year period provided all of his children are living, which was the case, be divided into six equal shares, and one of said shares given to the children of each of my children or descendants of such children; each family of children taking equal interest without regard to their number. This clause is perfectly plain. It means that the grandchildren in esse at the end of the twenty-year period take per stirpes an undivided one-sixtli interest in fee in this estate. It is then provided that if “some of my six children then living have no children, these are to receive the share which would go to their children, if any, subject however to the restrictions and qualifications hereinafter stated. ’ ’ This item is also perfectly plain. Namely, that the childless children are to receive the share that would have gone to their children at this time if they had any, subject to the restrictions and qualifications thereafter stated. By this clause the childless children are give a fee in apt language, not a life estate; without the qualifications and restrictions it would be a fee-simple absolute title; when considered with the qualification, it is a fee determinable either upon the birth of issue to a childless child or upon the death of a childless child. The testator disposes of the property devised to a childless child as follows: v

“Likewise if any of my children should die after the above-ordered division is made, leaving no issue at their death, then and in that event, I wish and direct that the shares and interest of such children so dying without issue in the property mentioned in this item shall also revert to my estate and go to the children of their sisters and brothers or to such sisters and brothers themselves if any such have no children to be held by such childless brothers and sisters subject to the executory devise in favor of my descendants in the event of their dying without issue.”

The chancellor construed this item to mean that upon the death of the first childless child one-fifth of the property devised to him went in fee to each of said grandchildren per stirpes. One-fifth went to each of the two surviving childless children, who held it for life subject to the executory devises to the grandchildren and their descendants, and upon the death of the second childless child one-fourth of his estate went to each of the representative branches of the grandchildren per stirpes and one-fourth, to the sole remaining childless child to be held by him for life. It is contended by the appellee that another reaonable construction of it would be to hold that a childless child was not devised any interest in the estate upon the death of a childless child, because the disjunctive conjunction “or” was used, which makes this clause of the will-mean that upon the death of a childless child the property devised to him goes solely to the children of the sisters and .brothers, and that it is only in case there be no children of any of the sisters and brothers that the childless children would participate in this devise. The testator meant for the childless children to participate in the estate of a childless child.

It is our duty to first construe the will according to the intention of the testator, and then to see whether or not this construction violates the rule against perpetuities, or what is commonly termed the two-donee statute of this state. As is stated in the Eule Against Perpetuities by Gray (3d Ed.), par. 629, p. 497:

“The rule against perpetuities is not a rule of construction, but a peremptory command of law. It is not, like' a rule of construction, a test, more or less artificial, to determine intention. Its object is to defeat intention. Therefore every provision in a will or, settlement is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied. ’ ’

This rule has frequently been quoted and referred to with approval in numerous opinions of this court.

Construing the clauses of this item of the will with reference to childless children, we have a succession of three donees living at the end of the twenty-year period, these three childless children. The first one of them to die represents the first donee. At his death one-fifth of the estate devised him goes to each of the surviving childless children subject to the same conditions and held in a similar way. The same thing happens upon the death of the second childless child. One-fonrth of the original property devised him goes to the sole surviving childless child, likewise one-fourth of one-fourth of the property of the first dying childless child goes to the sole surviving childless child under the terms of the will. Not until the death of the last surviving childless child will the entire estate devised to the childless children finally vest in fee.

This case is not like that of Redmond v. Redmond, supra, nor Henry v. Henderson, 103 Miss. 69, 60 So. 33. In the Eedmond Case the testator gave his seven children an estate measured by the life of the longest liver. In the Henry Case it was an estate given to two nephews measured by the. life of the longest liver. In the present case there is an estate which determines upon the' death of a childless child or upon the birth of issue to him. On the death of a childless child some portions of it vest absolutely, namely, in grandchildren or descendants, while other parts of it go to other childless children. In this respect it falls squarely within the principles announced in the case of Smith v. Muse (Miss.), 98 So. 436, and Hudson v. Gray, 58 Miss. 882.

From these views it follows that the attempted devises upon the death of the childless children are violative of this statute and are therefore void.

The question then to he determined is what character of estate these three childless children are devised. Eliminating the restrictions and qualifications and executory devises, which are too remote, by this item of the will they are devised a fee. This question was discussed by the court in the case of Reddoch v. Williams, 129 Miss. 706, 92 So. 831. In that case the court reviewed certain language used in the opinions in the cases of Gully v. Neville (Miss.), 55 So. 289; Henry v. Henderson, 101 Miss. 751, 58 So. 354, the same case reported in 103 Miss. 48, 60 So. 33; and other authorities. Among quotations is one from Brattle Square v. Grant, 3 Gray (Mass.) 142 63 Am. Dec. 725, as follows:

“Upon this point we understand the rule to be, that if a limitation over is void by reason of its remoteness, it places all prior gifts in the same situation as if the devise over had been wholly omitted.”

Also the following quotation from the Buie Against Perpetuities by Gray (3d Ed.), p. 229, par. 247:

“If future interests created by any instrument are avoided by the rule against perpetuities, the prior interests become what they would have been had the limitation of the future estates been omitted from the instrument. Thus, if an estate is given to A. for life, remainder to his children and their heirs, but, if the children all die under twenty-five, then to B. and his heirs, the limitation to B. is too remote, and the children of A. take an indefeasible fee simple.”

See, also, section 432, same work; likewise, the case of Smith v. Muse, supra. On this question this case is diréctly in point.

We therefore conclude that in this item of the will there is a good absolute, gift to these childless children; that the attempted restrictions and modifications violate the statute and must be stricken down; and that the childless children are devised in fee simple a one-sixth interest in this property. Our decision on this question renders it unnecessary to discuss other interesting questions presented.

There is no estoppel because the executor has administered the estate during the twenty-year period. Neither he nor the childless children have ever before been called upon to determine what interest was devised them and all others under this item of the will.

The decree of the lower court will be reversed, and the cause remanded to be proceeded with in accordance with this opinion.

Reversed and remanded.