Bibby v. Broome

Citations

• 116 Miss. 70
• 76 So. 835

Syllabus

<p>1. Wills. Construction.</p> <p>A will reading “I give to J. P. R. (my adopted son) his natural life, my dwelling and all land I now possess except, etc., and upon his death to his children, if any, and if he should die without leaving any living children, or should die with children and they should die, thereupon or at their death, etc., to be equally divided between C. C. & S.” gave an estate for life to J. P. R. with remainder in fee to his children, as provided by Code 1906, section 2764, and there being children, C. C. and S. would receive nothing, unless J. P. R. and his children should die before the testatrix; the rule being that, where the death of persons is dealt with as an uncertain event, it is presumed that not their death alone is meant, but at a particular time or under particular circumstances, and where it does not appear that such death was meant under particular circumstances, it will be presumed that the death should occur prior to the death of the devisee before the vesting in him of the property in possession, and to hold otherwise than that under this will the death should occur before the death of the testatrix would render the devise to C. C. and S. void for uncertainty.</p> <p>2. Perpetuities. Devise for more than two lives. Code 1906, Section 2765.</p> <p>Under Code 1906, section 2765, Hemmingway’s Code, section 2269, providing that a conveyance or devise can be made in succession to two lives in being, then to the heirs of the body of the remainderman or right heirs of the donor, in fee simple, where the third in succession is not such an heir, the grant or devise is void, since such statute governs all grants and devises to a succession of donees in so far as the number, thereof and the class to which the last donee must belong is concerned and a grant or devise in violation of it is void.</p> <p>3. Perpetuities. Burden of proof. Code 1906, Section 2765.</p> <p>Under Code 1906, section 2765, Hemmingway’s Code, section 2269, providing