ARTHUR BARCLAY, Appellant, vs. WILLIAM H. FREEMAN, Appellee.
[January Term, A. D. 1894.]
Appeal from the Court of Quarter Sessions and Common Pleas, Montserrado County.
Ejectment.
1. A will devising an estate to “A” for her natural life, and after her death to her heirs for their natural life, and, in the event “A” shall die without heirs, to “B” and her heirs forever, creates a life-estate to “A” and her heirs and an estate in fee to “B” and her heirs upon the happening of the contingency mentioned; and although “B” dies before “A,” but leaves a lawful heir, and subsequently “A” dies without issue, the fee therein will vest in the issue of “B” who survives “A.”
2. Possession does not always mean ownership; it may sometimes refer to the right and enjoyment of a term. A party may be possessed of an estate and yet not be seized under the statutes.
This action was brought by the appellee, who was the plaintiff below, to recover possession of a half lot, number one hundred and five, in the city of Monrovia. From the record of this case a trial was had at the September term of the Court of Quarter Sessions, Montserrado County, 1893. At said trial the plaintiff below obtained a verdict and judgment, f rom which the appellant excepted and brings the same before this court upon a bill of exceptions.
In this case the defendant below claims ownership to lot number 105, in the city of Monrovia, by virtue of a deed in fee simple from J. W. Good, Sheriff of Montserrado County, who sold said lot upon an execution founded upon a judgment in debt, against Cornelius and Martha A. H. McKrae, known also as Martha Anderson, at which sale he, the appellant, bought said premises; while the appellee sets up claim to the half of lot number los, founded upon the will and testament of the late Hull and Cheny Anderson, as the only surviving heirs of the body of Elizabeth Anderson, mentioned in said will. On inspecting the will we find that both Martha Ann Hull Anderson and Elizabeth Anderson (known as Elizabeth Freeman) were the grand-daughters of the testators, and that to them the testators devised certain estates. (See the will.) In the first paragraph of the will is created the interest of Martha Ann Hull Anderson (or McKrae) in the following language: “We will and bequeath unto the oldest daughter of my son Henry Anderson, namely, Martha Hull Anderson, my dwelling house and all the appurtenances thereto, for her natural life, and after her death it shall, should she have heirs, go to them, for their natural life, and should she die without any, then to her sister, Elizabeth Anderson, the daughter of Henry Anderson, and her heirs forever, so as to be understood that the above named property shall remain in the family from heir to heir and not be sold.” The language here used, in the opinion of the court, admits of no other interpretation than that it was the intention of the testators to secure to Martha Hull Anderson and her heirs during life, an estate for life in the premises mentioned in the will, and no more; and that in case she died without heirs, (here the testators unmistakably meant heirs of her body,) that the fee title to said premises shall be vested in Elizabeth Anderson and her heirs (meaning also the heirs of her body).
Nothing is more in harmony with the Statutes of Liberia than that the rights of parents descend to their children. (See Lib. Stat. 1st Book, page 137, sec. 5.) Every reflecting mind may at once agree, that with such plain language as was used in the will of the testators in relation to Martha Hull Anderson, she was only to enjoy a life estate, and that the same terminated after her death. Notwithstanding, her sister Elizabeth died before her. On the happening of such events it is the duty of this court to find out as nearly as possible what was the intention of the testators upon such contingent circumstances. Elizabeth Anderson dies first, but leaves an heir of her body, namely, W. H. Freeman, the appellee. Martha Hull Anderson dies, leaving no heir of her body. Nothing can assist the court in finding this out better than the following non-ambiguous language, used by the testators, viz., “so as to be understood that the above-named property shall remain in the family from heir to heir, and not be sold.”
This part of the will, in the opinion of this court, interprets itself, and conclusively shows that Martha Hull Anderson held but a life estate in half of lot number los, and could not convey the same; and that the fee simple title to said lot vests in the heir of Elizabeth Anderson, the appellee in this case. It is hardly necessary for this court to say that the practice of allowing the owner of property to direct its destination after his death is of very ancient date and coeval with civilization itself, so far as we know, and courts of law in all ages have respected that right. On inspecting the answer we find the following words: “That Martha McKrae during her lifetime was possessed of lot number one hundred and five, in the city of Monrovia.” Now the word “possessed,” says the learned Judge Bouvier, means the right and enjoyment of a term, or a person having a term who is said to be possessed and not seized under the statutes. This word embraces the idea “to occupy, to hold with or without ownership;” hence it is uncertain as to which meaning the appellant intended in the use of the term. However, it is due to the appellant conducting the defense in this case, for us to say he has displayed great ability in the effort to show that a will creating a perpetuity is unlawful, and had that point been raised in the answer this court would be bound to consider it. But the answer raised no such question; hence, in keeping with the former rulings of this court, the omission to make this point a ground of defense in the answer must by this court be held as a waiver. The court further says, on inspecting the record that it does not appear in the testimony that the objections were sustained by testimony amounting to proof.
To conclude, the court says, after a most careful review of the case, that it does not see why the judgment of the court below should be reversed. Therefore the court adjudges that the judgment of the court below is affirmed and that the clerk of this court make known to the court below the doings of this court.