Busby v. Rhodes

Citations

• 58 Miss. 237

Syllabus

<p>1. Will. Construction thereof. Limitation of estate. Termination upon contingency. Case in judgment.</p> <p>0. died.in 1862, leaving a last will and testament containing this provision: “I give and bequeath to my wifeM., for and during her natural life or widowhood, all my personal and real estate, of whatever kind or description, which may be remaining after the payment of my debts; and at the death or marriage of M., to my daughter E.; and should E. die during her minoi-ity, or without issue, and after the death or marriage of M., then to It. and the children of S.” M., the widow, died in 1867, without having married. B., the daughter, married B., and died in 1878, without issue living. Held, in an action of ejectment by B. and the children of S. against B., that the estate given to E. was a fee-simple, commencing after the termination of the precedent estate of the widow,' and defeasible on the contingency of E.’s death, after the death or marriage of the widow, without issue living. Oode 1857, art. 2, p. 306; art. 8, p. 307.</p> <p>2. Same. Limitation over. Executory devise. Contingency.</p> <p>The above recited provision of O.’s will contains a devise to B. of an estate in fee-simple, but determinable, with a limitation over dependent upon the expiration of less than three lives in being, and upon the dying of the holder of the precedent estate without issue living at the time of her death. This ulterior limitation by way of executory devise is good; and as the facts stated show that the contingency upon which it was to take effect has happened, the estate has vested in the remainder-men, R. and the children of S.</p>