Thompson v. Green

Counsel

Mitchell Clayton, for appellants. Appellants contend that the use of the word "heirs" in the last two lines of this will makes it void under the provisions of the statute against perpetuities. Testator provides that his property shall be divided equally among his wife and children. The real estate given to each one is not to be sold, but is to descend to their "heirs." The share given to his widow is to be held by her for her lifetime and at her death to descend to her children who are the children of testator, and according to the terms of the will this share which was allotted to the widow cannot be sold during the lifetime of the widow and then cannot be sold during the lifetime of her children, but must at their death go to their heirs. This creates two life estates so far as the widow's share is concerned and the remainder does not vest in the right heirs of the remainderman but in his heirs generally. This would mean to the remotest generation. The word "heir" is to be taken in the technical sense unless there is in the will a plain demonstration that the testator used it in a different sense. Irvine v. Newline, 63 Miss. 196 ; 29 C.J. 293. In the case at bar if this will is held valid, the result will be that the appellee will be unable to sell or dispose of his undivided half interest in the land. It is subject to partition only as to those in possession and the rights of the remaindermen cannot be affected. This was well settled in Lawson v. Bonner, 88 Miss. 235 ; Belew v. Jones, 56 Miss. 345 . The testator certainly could not have intended to have the title to his real estate so involved. To construe the will as contended for by appellants will result in vesting title in appellants and appellee as tenants in common and the land can be sold for division of the proceeds. To construe this will so as to render it void as contrary to the statute against perpetuities will best promote the interest of all parties concerned. Reporter's Note: No brief submitted for appellee.