Jones v. Waters

1. A testator'devised real estate to Ms wife, “ for and during her natural life, and after her death to descend to her. children by him, equally, share and share alike.” Held, this created a vested remainder in the children.

Appeal from Perry Circuit Court. The plaintiff, Francis L. Jones, filed his petition in the Circuit Court of Perry county, praying partition of several valuable tracts of land in Perry county, formerly the property of Joab Waters, which were by the will of Joab Waters, “ devised to his beloved companion, Polly Ann Elizabeth Caldwell, then called Polly Ann Elizabeth Waters, for and during her natural life, and after her death to descend to her children by him, equally, share and share alike.” The testator died in 1881. At the time the will was made, and at the death of Joab Waters, there were several children of the marriage, and among them, one called David C. Waters, who died before his mother. He died in 1845, and his mother, Polly Ann Elizabeth Waters, in 1851. Letters of administration were taken out on his estate, and his interest in the lands devised to Polly Ann Elizabeth Waters sold under a regular order of the county court, and Francis L. Jones acquired whatever interest said David C. Waters had, at the time of his death, in the lands in controversy. The plaintiff, in his petition, insists, that David C. Waters had a vested remainder in the lands devised by Joab Waters to his wife for life, and after her death to descend to his and her children. The defendants, in their answer, deny that the plaintiff has any title, and insist that the will created no vested remainder in the children. They also show that, upon the supposition a vested remainder was created by the will, still the interests of the parties are not correctly stated in the petition, for the reason, that no mention is made of one of the children of the marriage, Theresé, who died in 1832, shortly after her father. The court decided that a vested remainder was created by the will, and gave judgment of partition accordingly, correcting some errors in the statements of the interests of the parties shown to exist in the petition. The defendants filed a motion for a review and new trial, which was overruled by the court, and the case brought to this court by appeal. By the terms of the will, nothing could vest in the children under it till the death of the mother, and the remainder only vested in such of the children as were living at the mother’s death. It comes within the description of an executory devise, which is defined by Fearne to be a devise of a future interest in land, not to take effect at the testator’s death, but limited to arise and vest upon some future contingency ; or more accurately, by the same author, such a limitation of a future estate in lands or chattels as the law admits in the case of a will, though contrary to the rules of limitation of conveyances at common law. In this view o£ the law, David. C. Waters, at bis death, bad no interest, and the petitioner acquired none. 1. By virtue of the provisions of the will of Joab Waters, deceased, his children, by his then wife, (under one of whom the plaintiff claims,) took a vested remainder, subject to the life estate of their mother. 4 Kent’s Com. 202 to 206. 2. Admitting, for the sake of argument, that the provisions of the will would make a case falling within the rule in Shelley’s case, yet, the rule in Shelley’s case was abolished in this state in 1825, by statute. 4 Kent’s Com. 231. R. C. 1825, vol. 1, p. 216, sec. 4. Ib. vol. 2, p. 794, sec. 18. 1 Hilliard on Real Property, 647.