
    Williamson v. Tunis.
    
      (Jackson.
    
    May 11, 1901.)
    Wills. Gives transmissible interest, when.
    
    Under a devise of lands to testator’s daughter, and, upon her death without issue, to her surviving brothers and sisters, or their issue, the daughter takes a vested and transmissible interest, subject to the contingency of dying without issue, and her issue take, not under the will, by inheritance from her.
    Cases cited and approved: Petty v. Moore, 5 Sneed, 128; Owen v. Hancock, 1 Head, 563; Alston v. Davis, 2 Head, 266; Cowan, McClung & Co. v. Wells, 5 Lea, 684.
    Cited and distinguished: Springfield v. Jackson, 11 Lea, 348; Turner v. Ivie, 5 Heis., 222.
    PRO ML SHELBY.
    Appeal from Chancery Court of Shelby County. M. B. Teezevant, Sp. Oh.
    R. P. Caey for Williamson.
    J. B. Heiskell for Tunis.
   Wilkes, J.

In the shape this cause comes before this Court it is a bill to have 'the rights of complainant declared in a tract of land containing four acres, and to have the same partitioned and to have construed the will of B. B. De-Graffinreid. Complainant’s right depends upon the construction 'of the will of B. B. DeGraffinreid. This will was made April 4, 1846, with a codicil dated 14th September, 1855, and disposed of a large amount of land, slaves and personal property.

The testator left a son, Henry E., who died intestate and without issue, a daughter, Elizabeth Springfield, who died leaving one son, Baker C. Springfield, who is still alive, but has now no interest in the controversy, a daughter, Agnes I. Fleece, who died intestate and without issue, and a daughter, Sarah B. Green, who died intestate September 28th, 1900, leaving defendant, J. N. Green, as her only living child, and complainant, Ada F. Williamson, as her grandchild, the daughter of a deceased child, and a grandson, J osiah Evans, who died intestate after his grandmother, leaving no children.

Complainant can only recover upon the right of her grandmother, Sarah B. Green, under the terms of the will of her father, B. B. DeGraf-finreid, and she claims one-eightli of the property. Defendants, except J. N. Green, claim under a conveyance from Baker 0. Springfield, Sarah B. Green and J. N. Green, and they are in possession.

The Chancellor held that Mrs. Sarah B. Green took an ' absolute estate in her share in this land, and that passed by her deed to Tunis, the ancestor of defendants, and from this portion of the decree the complainant appealed.

He also held that complainant, Ada, took equally with her uncle, J. N. Green, in all the other property of the estate devised to Mrs. Green except the land described in the bill, and from this part of the decree J. N. Green appears to have appealed, but has assigned no errors.

It is assigned as error for complainant that the Court, incorrectly held that Sarah B. Green took an absolute estate, and not for life only, with remainder to her children and their descendants.

The provisions of the will which bear upon the title and interest of Mrs. Green are long and complicated, the property being settled upon and vested in trustees, but the language upon which the controversy turns is as follows:

“Upon the decease of either of my said daughters, Sarah and Agnes, or grandson, Josiah, or all, without leaving living child or children or descendants of such, then the portion allowed for such child or- children or grandchildren so dying without leaving child or living descendants of such, to go in equal proportion to the survivors,” or, put in shorter language, the limitation to Mrs. Green is to her, and upon her death without issue, then to her surviving brothers and sisters.

The contention on complainant’s part is that tbe proper construction, of sucb limitation is that in tbe event there is issue as in the case of j\£rs. Green, such issue take a remainder under tbe will, while for the defendants the contention is that in the event there is issue the estate of the first taker, Mrs. Green, became absolute. In other words the estate was vested in Mrs. Green subject only to be defeated by her dying without issue.

This will has heretofore been partially construed in the case of Springfield v. Jackson, 11 Lea, 348, the exact question in that case being the power of Blount Springfield to sell the land given to his wife.

It was said in that case that the title of Mrs. Springfield upon her death vested in her son, Baker 0., by the terms of' the will of DeGraf-finreid.

But the provision under which Mrs. Springfield held her title is not the same as that vesting title in Mrs. Green, but as to Mrs. Springfield, it is provided in the third section of the will that her share on her death should go to her child or children or their descendants, and on failure of such to revert to the estate, while in the devise to Mrs. Green there is no provision that the property should go to her children or their descendants, but simply that if she died without issue then her share is to. go to her brothers and sisters.

In otter words, as to Mrs. Springfield’s stare ttere is an express limitation to ter ctildren and tteir descendants, wtile in tte case of Mrs. Green ttere is no snct provision. For tte same reason and on tte same ground ttis case is distinguisted from Turner v. Ivie, 5 Heis., 222.

Tte consequence is ttat as to Mrs. Green’s stare it is atsolute under tte terms of tte will, except in tte one contingency ttat ste die leaving no issue, and ttat contingency not taving tap-penád, tut ■ ste taving died leaving issue, tte estate was atsolute, and would, in tte atsence of any otter disposition, tave passed to ter teirs as suet, and ter ctildren would tave tad no interest as devisees, ttougt ttey migtt tave taken as teirs. But in tte meantime ste and ter son, defendant -I. M. Green, disposed of ter interest in tte estate to tte ancestor of defendants, and vested in tim all tteir interest, stare and estate. Petty v. Moore, 5 Sneed, 128; Owen v. Hancock, 1 Head, 563; Alston v. Davis, 2 Head, 266; Cowan, McClung & Co. v. Wells, 5 Lea, 684. Ttese cases in sutstance told ttat under like limitations and terms tte tirtk and survival of a ctild determines tte contingency, and tte estate is vested and atsolute, and ttere teing no express limitation to tte ctildren, none will te implied, and ttey will take notting as devisees.

Ttere is a provision in tte will ttat “upon tte decease of either of my ctildren without issue” her estate shall go over to the survivors or their issues, hut this does not mean the issue of the daughter dying, hut of the brother or sister, and, moreover, the contingency is the death of the daughter without issue, a contingency which did not happen in the case of Mrs. Green.

There are some expressions in the will which are relied upon as indicating an intention upon the part of the testator to limit the estate of his daughters and this is no doubt true, but the question is, To what extent do the limitations go? We think the expressions relied on only go to the extent of vesting the estate in trustees for the use of the daughters and in trust for the support and maintenance of their children, hut not to the disposition of the estates after the death of the daughters, which is dependent alone on the contingency of dying without issue, so far as Mrs. Green is concerned.

It follows that there is no error in the decree of the Chancellor, and it is affirmed and the hill is dismissed as to all the defendants except J. N. Green. As to him it is affirmed, he not having prosecuted his appeal by assigning errors.

The cost of appeal will he equally divided between the complainant and said J. N. Green. The costs of the Court below will, remain as adjudged by the Chancellor.  