Hawkins v. Hawkins

72 Miss. 749

• Court: Mississippi Supreme Court
• Decided: March 15, 1895
• Status: Published

Opinions

Cooper, C. J.,

delivered the opinion of the court.

The appeal calls for the construction of a deed executed by C. M. Yaiden and Elizabeth, his wife, to his three nieces, Lizzie V. Hawkins, Alice Y. Herring and Sallie Cowles Herring. In consideration of natural love and affection, Mr. Yaiden conveyed to his said nieces a certain lot in the town of Yaiden, by the following terms: “We give to them, our said nieces, Lizzie Y. Hawkins, Alice V. Herring and Sallie Cowles Herring, said lot as described, with all appurtenances, emoluments and rents arising from the same during their natural lives, and at their death to the descendants of their bodies in fee, if any they may have, but if they have none to survive them, then, in that event, to the heirs of their brothers and sisters in fee. ’ ’ By statute it is provided: “All conveyances of lands made to two or more persons, shall be construed to create estates in common, and not in joint tenancy, unless it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint tenancy, with the right to the survivor or survivors; Provided, This provision shall not apply to mortgages or conveyances made in trust. ” Code 1871, § 2301; Code 1892, § 2141.

The chancellor was of opinion that, but for the statute, the conveyance under review would have given a joint estate for their lives to the nieces of the grantor, with remainder at the death of the survivor to the descendants of the life tenants. In this conclusion we entirely concur. Hungerford v. Anderson, 4 Day (Conn.), 368. We concur also in the conclusion that it does not sufficiently appear by the deed that the grantor intended to preserve the right of survivorship, to withdraw the conveyance from the operation of the statute.

But the chancellor erred as to .the effect of the statute upon the conveyance. It did not convert the estate for three lives into an estate for life only of the respective tenants in common. Each of the tenants in common remained, as before, a tenant for three lives — that is, for her own life, if she should survive her co-tenants, but for the life of the last survivor if they, or either of them, survived her. The statute does not cut down the estate of the tenants, but destroys the right of survivorship. At the death of Mrs. Sallie Hawkins, her estate then existing in the land passed to her heirs at law, instead of going by sur-vivorship to her co-tenants, as it would have done but for the statute. And, so, when Mrs. Lynch died, her life estate descended to her heir at law. When, and not until, the last life tenant shall die, the ulterior limitation will take effect, and the fee will pass under the deed. Until that event, the representatives of the life tenants hold their respective estates by descent.

Reversed and remanded.