Heard v. Garrett

34 Miss. 152

• Court: Mississippi Supreme Court
• Decided: October 15, 1857
• Status: Published

Opinions

HANDY, J.,

delivered the opinion of the court.

In April, 1855, the plaintiff in error recovered a judgment against the administrators of Lewis M. Garrett, who died intestate, in the year 1850. An execution, issued upon that judgment, was levied upon a certain slave; which was claimed by the defendant in error as her property, under the provisions of the statute upon the subject, and an issue was made up thereupon for the trial of the right of property in' the slave. The matter of inquiry was, whether Lewis M. Garrett, or his representatives, had any right, title, or interest in or to the slave, at the time of the levy of the execution. His right and title were derived from a deed of marriage settlement, executed in the year 1829, by one Hiram Singleton, the father of the defendant in error (then Sarah D. Singleton), Lewis M. Garrett, and Sarah D. Singleton, in anticipation of a marriage thereafter to be solemnized between the said Garrett and Sarah, and which was consummated. This deed is in substance as follows: After reciting the anticipated marriage, and that the said Hiram “being desirous of making a suitable provision for his'said daughter on her marriage, and to secure the same to her and her heirs,” he agreed “ to deliver to the said Sarah on her intermarriage as aforesaid, and as her marriage portion,” certain specified slaves, including the one in controversy in this case. It was further stated, that the said Sarah and the said Garrett, “ being desirous of securing said property to the heirs of said Sarah, if any, and to prevent the same from being sold or otherwise disposed of during her natural life,” in consideration of the contemplated marriage, agreed with themselves and with the said Hiram Singleton, that the said slaves, so soon as the same should be delivered to the said Lewis M. Garrett, after his intermarriage, “ shall be and remain in the quiet and peaceable possession of the said Lewis M. Garrett and the said Sarah Singleton after their intermarriage, for and during the natural life of said Sarah. And it is agreed on between the parties aforesaid, that the income from the labor of said slaves and their increase shall accrue to the said Lewis M. Garrett, for and during the natural life of said Sarah, to he disposed of in such manner as he in his discretion may think proper; and that all the estate, real and personal, which may be acquired by the said Lewis M. Garrett from the ineome of the labor of the said slaves, shall be and remain the absolute property of the said Lewis M. Garrett, his heirs and assigns, forever. And it is further_agreed on between the said parties, that in case the said Lewis M. Garrett should die leaving issue alive by the said Sarah Singleton, then the negro slaves aforesaid and their increase shall descend to and become the absolute property, in fee simple, of such issue, unless the said Sarah should have issue by some subsequent marriage, and in that case, all the issue should take, share and share alike, at the death of the said Sarah. But in case the said Sarah should depart this life without issue living as aforesaid, either by her intermarriage with the said Garrett, or by some subsequent marriage, then and in that case, the above mentioned slaves and their increase shall, on the death of the said Sarah, without issue as aforesaid, revert to and become the absolute property in fee simple of said Hiram Singleton and his heirs, forever.”

The slaves, including the one in controversy, were delivered according to the terms of this agreement, and it appears that after the marriage of Garrett and the defendant in error, they remained with them during Garrett’s life;- and since his death, had been in the possession of his widow, the defendant in error, there being issue of the marriage living at the time of his death. •

In the construction of the deed of settlement, the following questions arise upon the facts presented by the record:—

3. Did Mrs. Garrett take any estate under the deed? and if so, what was its character ?

2. Did such estate vest in Lewis M. Garrett for the term of Mrs. Garrett’s life; or did his interest in the slaves determine at his death?

1. In determining the first question, we must take into consideration the object of the donor in making the settlement, as it may be shown by the face of the instrument, as well as the particular words and clauses respecting the interest given to the daughter, and ascertain, from the whole, whether an intention is apparent to give the daughter an individual interest in the property settled.

The deed declares that the donor, for the purpose u of making a suitable provision for Ms daughter on her marriage, and to secure the same to her heirs,” and “ to prevent the same from being sold, or otherwise disposed of, during her natural life,” agreed to “ deliver to her, on her marriage, and as her marriage portion,” the slaves mentioned, and which was done accordingly after the marriage. These expressions appear to show clearly that the object was to give her the use and benefit of the property during her life, and to secure it to her heirs after her death. And this object appears to be more clearly manifested by the subsequent provisions/ that all her issue, either by Garrett or by any subsequent marriage, should take the property, share and share alike, at her death; and that, if she should die without such issue living at the time of her death, the property should, on her death, revert to the donor. These limitations appear so clearly to indicate that a life estate in the daughter was intended, that we must conclude that a life estate in her was created by implication, unless that construction be repugnant to other plain provisions of the instrument.

There is hut one clause in the deed which appears to be in opposition to this construction; and that is the provision, that, “in case Lewis M. Garrett should die, leaving issue alive by the said Sarah Singleton, then the slaves shall descend to and become the absolute property, in fee simple, of such issue.” This clause, if it stood alone, would be conclusive against the life estate of Mrs. Garrett, and would vest the property, upon the death of Garrett, absolutely in the issue of the marriage then alive. But it must be construed with reference to other provisions of the instrument. If obviously repugnant to other provisions, such a construction of the whole must be adopted as is most in consonance with the general spirit and objects of the instrument, to be collected from all its parts; and, if doubtful, it must be reconciled with, and explained by, plain provisions in other parts of the instrument,'and made to yield to the general intent clearly manifested.

It is to he observed, in the first place, that the whole clause referred to, does not plainly and necessarily give the property to the issue of the marriage, to vest in possession upon the death of Gfar-rett. For, after making a provision to that effect, it continues, “ unless the said Sarah shall have issue by some subsequent marriage, and, in that case, all the issue should take, share and share alike, at the death of the said Sarah.” The general words, in the first part of the clause, favoring the idea that the donor intended that the estate should pass to, and vest in, the issue of the marriage, immediately upon the death of Garrett, are qualified by the latter words of the clause, which plainly show that the estate was to vest jn possession in the issue of the first marriage, together with the issue of Mrs. Garrett by any subsequent marriage, at her death, and who might be then living; and that the estate was to vest in possession, neither in the issue of the first marriage, nor in that of any subsequent one of Mrs. Garrett, until her death, which necessarily implies an estate for life in her. If this be not true, the estate must have been left in one of two conditions upon the death of Garrett, leaving issue of the marriage, and his wife surviving him. It must either remain in abeyance until Mrs. Garrett’s death, until which time it cannot vest, because until then it cannot be ascertained whether it vests in the issue of the first marriage alone, or jointly with the issue of a subsequent marriage, which may be born before her death. This condition of the estate cannot be sanctioned; for it is inconsistent with the nature of such property, and leads to unreasonable and improbable results. Or the estate must have vested in the issue at Garrett’s death, subject to a condition subsequent, that, if Mrs. Garrett should have issue by a subsequent marriage, such issue shall become entitled to their shares, equally with those of the former marriage, at her death. But the words employed do not import an estate upon condition subsequent. If an estate was vested in the issue of the first marriage, it was not to be divested by the fact of Mrs. Garrett’s dying, leaving issue of a subsequent marriage; and, in order to make a condition subsequent, it must operate upon an estate already created and vested, and render it liable to be defeated by the subsequent contingency. 4 Kent’s Com. 130 (8th edit.). Hence, it could not be an estate vested in the issue of the first marriage upon a condition subsequent.

All diflSculty in interpreting the clause appears to be removed by the construction, that no estate vested in possession, either in the issue of the first marriage, or in that of a subsequent one, until the determination of Mrs. Garrett’s estate for life; and, after that, that the estate vested fully and absolutely in the issue of the first marriage, unless there .was then issue by a subsequent marriage, in which event the estate became vested in the issue of both marriages. This construction does no violence to the language of the entire clause, and accords with the purposes of the donor, as declared in the deed, and with its positive provisions; while the contrary construction is irreconcilable with the instrument in both of these points of view.

The principal object of the settlement, was to make provision for her on her marriage, so that the property could not be disposed of or sold during her life ; and it was to be held by her and her husband during her life. It is manifest that this object would have been entirely defeated by depriving her of the property on Garrett’s death, and transmitting it immediately thereafter to their children. And accordingly its positive provisions are, that in the event of Garrett’s death, she surviving, the property, at her death, should go to their issue alone, or jointly to that issue and the issue of any subsequent marriage; and that if she died leaving no issue, by Garrett or any subsequent husband, living at the time of her death, then it should revert to her father and his heirs. It appears to be impossible to understand these provisions otherwise than as giving an estate for life to Mrs. Garrett, after Garrett’s death, by necessary implication.

In order to test this, let us suppose that Garrett had died leaving no issue of the marriage and Mrs. Garrett surviving him, what would have been the condition of the estate ? It could not go to the issue of the marriage, for there would be none. And it could not then revert to- the father, because by the terms of the deed the reversion was only to take place after her death, leaving no issue either by the first or subsequent marriage. It could not remain in abeyance until her death.

It appears clear, therefore, from the whole spirit and scope of the deed, that an estate for life in Mrs. Garrett was contemplated in the event that she should survive her husband.

2. The next question is, whether Garrett became entitled to the use and benefit of the property during the life of Mrs. Garrett, to continue after his death, she surviving him, or whether his interest determined at his death.

There are but two clauses in the deed giving any countenance tO' the idea, that the interest of Garrett in the property was intended to continue after his death, and during the life of Mrs. Garrett surviving him. One of these is the clause, that the property should remain in the possession of Garrett and Mrs. Garrett after their marriage, “for and during her natural life.” The other is the clause, that “ the income from the labor of the slaves shall accrue to Garrett, for and during the natural life of Mrs. Garrett, to be disposed of, as he in his discretion may think proper,” and all property acquired by Garrett from the income of the labor of the slaves should be his absolute property.

The first of these clauses gives the joint possession to Garrett and his wife during her life; and the legal effect of this is, that upon his death, the right of possession was in her by suvivorship. 4 Kent Com. 380 (8th edit.).

The second clause, taken alone, would appear to sanction the view that Garrett was entitled to the use and benefit of the slaves during the life of Mrs. Garrett, though she might survive him. But this construction is not sustained by the language employed in the clause, taken in connection with other parts of the instrument.

One of the main objects of the settlement was to make a suitable provision for Mrs. Garrett; and to that end, an estate for life in the slaves was given to her, as is above shown. It was then provided, that after the marriage the slaves should remain in the possession of Garrett and wife during her life; and then follows the clause giving to Garrett absolutely, the income of the labor of the slaves. After this comes the provision, that in case of his death, the slaves should become the property of the children of the marriage, or those of Mrs. Garrett by any subsequent marriage, at her death.

In view of these provisions and of the language used in the clause under consideration, it appears evident that the clause does not contemplate an interest in Garrett beyond the period of his life, for the following reasons:—

1st. If such a provision had been intended, it would have been unnecessary to specify it in the deed ; for the law entitled him, in virtue of his marriage, to all the right and title of his wife to the property. The clause, therefore, is to be considered rather as a restriction of his general legal right, than a useless declaration of such right.

2d. The language of the clause contemplates the receipt and disposition of “ the income of the labor of the slaves,” by Garrett during his life. It gives him such income, “ to be-disposed of in such manner as in his discretion he may think proper, and that all the estate, real and personal, which may be acquired by him from the income of the labor of said slaves, shall be and remain absolutely his property.” This language plainly intends individual acts of Garrett in receiving and disposing of the income at his discretion, and in acquiring property by his own act by means of .the income, and cannot apply to any interest in him in the property after his death. The power given him to dispose of the income at his discretion, cannot be understood to enlarge the interest intended by the general sense of the clause, and to extend his interest beyond his life; for that would be directly repugnant to a previous clause declaring that it was one of tbe objects of tbe parties to prevent tbe slaves from being sold, or otherwise disposed of during Mrs. Garrett's life, and inconsistent with the provision plainly made for Mrs. Garrett during her life and after Garrett’s death.

3d. It is manifest that the income of the labor of the slaves is the only interest intended to be given to Garrett. That is expressly given to him, and the expression of that, is the exclusion of any other interest. "When, therefore, the deed provides that, in the event of his death, the slaves shall be the absolute property of the issue of the marriage, &c., it must be understood to mean, that all his interest was determined by his death; for he ha-d no estate which could prevent the vesting of the estates of his wife and children except his interest in the income of the labor of the slaves.

If these views be correct, the provision that Garrett should be entitled to the income of the labor of the slaves, “for and during the natural life of Mrs. Grarrett,” must be understood to have been made upon the idea that Garrett should survive his wife.

Considering all the provisions of the deed, and the language of the clause under consideration,- they go to show that an estate for life in Mrs. Garrett was contemplated, which Garrett might enjoy so long as he lived; that upon his death his interest was determined, and the estate vested in interest in the children of the marriage, together with the issue of Mrs. Garrett by any subsequent marriage, living at the time of her death, but not to vest in possession until the death of Mrs. Garrett, who is entitled to an estate for her life. And this appears to be the just and reasonable construction of the instrument.

It follows, from these views of the case, that Garrett’s administrators had no interest in the property which could be taken in execution, and that the judgment for the defendant in error was correct. It must accordingly be affirmed.

Fishee, J.,

said,

The only important question is, whether the property is liable to the plaintiff’s execution; and believing that it is not, I concur in the conclusion of this opinion. I also believe that the opinion is correct as to the other questions therein discussed; but do not desire to commit myself beyond the question first stated.