Lynch v. Lynch

Mississippi Supreme Court

Lynch v. Lynch

23 So. 2d 263, 198 Miss. 479, 1945 Miss. LEXIS 217

CourtMississippi Supreme Court

DecidedSeptember 24, 1945

DocketNo. 35905.

StatusPublished

This text of 23 So. 2d 263 (Lynch v. Lynch) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lynch v. Lynch, 23 So. 2d 263, 198 Miss. 479, 1945 Miss. LEXIS 217 (Mich. 1945).

Pincite

Opinions

This cause was formerly before us on interlocutory appeal.196 Miss. 276, 17 So.2d 195. For convenience we reproduce only the applicable provision of the will under which the parties have taken.

The will provides: "All the rest and residue of my property of every kind, character and description, wherever the same may be situated, that I may own or which I may be interested in at the time of my death, I devise and bequeath to my wife Mary Frances Lynch and my son, Barry Dexter Lynch, share and share alike." Then the will provides "if my said child die before he arrives at the age of twenty-one years, then in that event, his share of my estate shall go, share and share alike, to the heirs of my body then living."

On the former appeal we held that a demurrer, which attacked the widow's right to partition in kind, was properly overruled. The right of partition was upheld. Upon remand, all parties being before the court, commissioners were appointed and a partition made and approved by the court. The defendants have appealed.

The gist of appellants' contentions is that our former opinion is not warrant for partition as between the widow owning an undivided one-half in fee simple, and the son who owns an undivided one-half qualified or determinable fee. Counsel has misconceived the import of our decision. The widow was entitled to have her interest in the property set aside to her. Having been devised an unqualified fee therein her allotted share remains invested with that quality.

All we said or intended to say in regard to the remaining half interest was that we could not and did not adjudicate the rights of the several parties who may ultimately become vested with an unqualified fee — whether it be the devisee himself or those who would succeed him. The latter estate, therefore, is set aside under the partition in the same legal aspect and with the same incidents as attached *Page 483 under the will to the undivided interest of appellant Barry Dexter Lynch.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

This cause was formerly before us on interlocutory appeal.196 Miss. 276, 17 So.2d 195. For convenience we reproduce only the applicable provision of the will under which the parties have taken.

The will provides: "All the rest and residue of my property of every kind, character and description, wherever the same may be situated, that I may own or which I may be interested in at the time of my death, I devise and bequeath to my wife Mary Frances Lynch and my son, Barry Dexter Lynch, share and share alike." Then the will provides "if my said child die before he arrives at the age of twenty-one years, then in that event, his share of my estate shall go, share and share alike, to the heirs of my body then living."

On the former appeal we held that a demurrer, which attacked the widow's right to partition in kind, was properly overruled. The right of partition was upheld. Upon remand, all parties being before the court, commissioners were appointed and a partition made and approved by the court. The defendants have appealed.

The gist of appellants' contentions is that our former opinion is not warrant for partition as between the widow owning an undivided one-half in fee simple, and the son who owns an undivided one-half qualified or determinable fee. Counsel has misconceived the import of our decision. The widow was entitled to have her interest in the property set aside to her. Having been devised an unqualified fee therein her allotted share remains invested with that quality.

All we said or intended to say in regard to the remaining half interest was that we could not and did not adjudicate the rights of the several parties who may ultimately become vested with an unqualified fee — whether it be the devisee himself or those who would succeed him. The latter estate, therefore, is set aside under the partition in the same legal aspect and with the same incidents as attached *Page 483 under the will to the undivided interest of appellant Barry Dexter Lynch.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

23 So. 2d 263, 198 Miss. 479, 1945 Miss. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-v-lynch-miss-1945.

Opinions

Related

Cite This Page — Counsel Stack