Riggan v. . Lamkin

Fueohes, J.:

This appeal involves the construction of a most remarkable will. The will was made in 1865, and the testator, William Lamkin, died in 1866, and. soon thereafter it was duly admitted to probate. The testator bad ten children, all surviving him at thetime of his death— four of whom were then married, the other six, all of whom were daughters, being unmarried.

After providing for the payment of his debts in the first clause of his will, he provides in the second clause that all the residue of his estate shall be kept together, and under the management of his daughter, Letha A.. Lamkin, and if she shall die before Parmelia Lamkin, then the estate to be under her management for the use and benefit of his six single daughters.

The Ihird clause of his will is as follows: “At the death or marriage of my last single daughter, who has never married, I give'to such of my children --Frances -O. Rig-gan, Lucy H. Riggan, Harriet M. Lamkin, Parmelia E. Lamkin, Letha A. Lamkin, Mary W. Lamkin, Rebecca E. Lamkin, ¡Sarah M. Lamkin and George W. Lamkin — . as shall never marry, after this time, each an equal portion of said balance of my estate; but the shares of my said daughters, Frances O. Riggan and Lucy IT. Riggan, are only given to them during their lives, and after their death said shares are hereby given to their children, then surviving, by their present husbands.”

Clause 4th: “After the death or marriage of my last single daughter, who has never married, her share of my estate is to be divided equally between my above named children who shall have never married after this time — the children of any deceased child among them to stand in the place of the deceased parent. ”

This will was made on the 23d of September, I860, and on the 30th of the same month the testator made the following codicil: “I do hereby declare that my daughter, Mahala Paschall, and her two children, William Henry Paschall and Elizabeth H. Bottoms, are not to take any part of my estate under the foregoing will.” • '

The question as to whether the inhibition to marry, placed on the single daughters, was not against the policy of the ]aw and therefore void, leaving the estate to vest in fee, was ably argued by counsel. But the view we take of the case and the construction of the will, does not make it necessary that we should consider this question.

We are clearly of the opinion that no estate vested under the will until the death of Letha A. Lamkin, at which time the testator says, “I give, to such of my children”. * * * ‘'"'each an equal portion of said balance of my estate. ’ ’ This being so, that is, no estate being in the unmarried daughters before their death, the removal of the unlawful restrictions was of no avail, as they had no estate to be freed. And as they had no estate, none could descend to their brothers and sisters upon their death.

It only remains to see who were the devisees capable of taking under the will, at the death of Letha A. Lam kin.

And it seems to us to be plainly declared that Frances 0. Riggan and her children, Lucy H. Riggan and her children, and George W. Lamkin, who were married at the date of the will, and were never married again after that time, are the only beneficiaries under the will.

JVIahala Paschall ‘and her son, W. H. Paschall, and her daughter, Elizabeth- H. Bottoms, are expressly excluded from any benefits under the will by the codicil.

And the defendant, Nannie E. Lamkin, is excluded for the reason that her mother, Sarah M. Lamkin, died in 1893, before Letha A. Lamkin, and therefore had no estate in the property willed by William Lamkin, to descend to the defendant, Nannie Lamkin. And she cannot inherit, through her mother, from her aunts, if they had any estate to inherit, being an illegitimate child.

This makes it unnecessary for us to determine whether Letha A. Lamkin, the last surviving single daughter, took any estate or not (as the learned Judge below seemed to tbink she did), as the results are the same, whether she did or did not. The judgment below is affirmed.

MoNtgombRy, J., did not sit in the case.