ON PETITION FOR REHEARING. Petition for rehearing is before us. The petition is based upon the apprehension that the opinion in this case in effect overrules what was said in Blocker v. Blocker, 103 Fla. 285,137 So. 249.
The opinion filed in this case is in harmony with that in the case of Blocker v. Blocker. The cases, however, are to be differentiated because of existing facts.
In the Blocker case the life tenant conveyed his life interest in a certain lot to a third person and the heirs of the testator conveyed to the same third person the reversion in fee. It was held that by the act of the parties in making the conveyance there was a merger so as to exclude the intermediate contingent estate. See: Bennett v. Morris, *Page 518 5 Rawle 9; Eggerton, et ux, v. Massey, 3 E.C.L. 337, 21 C.J. 1006, 1036, 23 R.C.L. 564, 565.
In the Blocker case the suit was for partition of lands and the minors who represented the intermediate contingent estate in fee were made defendants to determine their existing rights, if any, in real estate that had been conveyed to a third party by the life tenant and the reversioners.
In this case the suit is for a declaratory decree under the statute, Section 4953-4 C.G.L., which does not cover the case in hand; and the minor representative of the intermediate contingent estate in fee is made a party plaintiff. The life tenant and reversioner has made no conveyance of her two interests to a third party so as to create mergers to destroy the intermediate contingent estates. Without an elimination of the intermediate contingent estates there are no mergers, since all the estates in the lands flow from the original conveyance made by J.C. Bishop to each of his two daughters for life with contingent remainders.
The conveyance by J.C. Bishop, now deceased, of Lot 5, Block 5, in the Plat of Sarasota, is in effect to his daughter, Mrs. Mattie V. Davis, for life, then to any living children or grandchildren of Mrs. Davis at her death, in fee; and if Mrs. Davis shall leave no children or grandchildren surviving her, then to Mrs. Bonnie K. Tankersley, daughter of the grantor, for life; and then to the surviving children and grandchildren of Mrs. Tankersley, in fee; and if Mrs. Tankersley shall die leaving no children or grandchildren surviving her then to her "heirs in fee."
Mrs. Tankersley having died leaving no children or grandchildren surviving her, the entire right of reversion in Lot 5, Block 5, is now in Mrs. Davis under the law, as the sole heir of the deceased grantor, J.C. Bishop. Thus Mrs. Davis has a life estate and the reversion in Lot 5, Block 5, subject to the intermediate contingent estate in fee of any *Page 519 children or grandchildren of Mrs. Davis, who may survive her. Such intermediate estate may be destroyed by a conveyance of the life estate and the reversion to the same person thereby causing a merger destroying the intermediate contingent estate.
The conveyance by J.C. Bishop, now deceased, of Lot 14, Block 7, in the Plat of Sarasota, is in effect to his daughter, Mrs. Bonnie K. Tankersley, for life, then to any living children or grandchildren of Mrs. Tankersley in fee; and if Mrs. Tankersley shall leave no children or grandchildren surviving her, then to Mrs. Mattie V. Davis, daughter of the grantor, for life; and then to her children and grandchildren, in fee; and if Mrs. Davis shall die leaving no children or grandchildren surviving her, then to her "heirs in fee."
Mrs. Tankersley having died leaving no children or grandchildren surviving her, Lot 14, Block 7, goes under the deed to the daughter of the grantor, Mrs. Davis, for life, and then to her children or grandchildren, if any surviving, in fee; and if Mrs. Davis shall die leaving no children or grandchildren, then to Mrs. Davis' "heirs in fee."
This does not give Mrs. Davis a fee simple title to Lot 14, Block 7, under the Rule in Shelley's case, to the exclusion of the intermediate contingent estate to her children or grandchildren in fee. While she lives the reversion in fee is in Mrs. Davis, the sole heir of the grantor, J.C. Bishop. At the death of Mrs. Davis the fee simple title to the lot vests in her surviving child or children or grandchildren, if any, or if none, in her heirs under the conveyance; or the fee simple may vest under the law by merger upon the destruction of the intermediate contingent estate by conveyances from Mrs. Davis of the life estate and the reversion in fee to the same grantee. *Page 520
In the instant case all the parties received their estates through conveyances from the grantor, their common ancestor, and merger by act of the parties has not occurred to extinguish intermediate estates. See: Crisfield vs. Stern, 46 Md. 129, 11 Am. Rep. 480.
It does appear however, that the conclusion stated in the last paragraph of the opinion, reading as follows: "It, therefore, follows that Mrs. Davis, joined by her husband, may convey a good legal title to a life estate in both parcels of land, and may convey fee simple title to both parcels of land subject to the intermediate contingent remainders; which contingent remainders may be conveyed by Virginia Bishop Davis when she, or her guardian, is thereunto lawfully authorized, subject to the contingency that Mrs. Davis may die leaving a child or grandchild other than Virginia, or the contingent remainder as to both parcels of land may also be defeated by the death of Virginia without issue prior to the death of Mrs. Davis." — should be modified so as to read as follows:
"It therefore, follows that Mrs. Davis, not having made any conveyances of the title or titles vested in her, either under the conveyance from her father or vesting in her as an heir of her father, is not in position to invoke a declaratory judgment to determine what the status of the title of the grantee would be if she should convey both the life and the reversion or fee simple estate now vested in her to a third person."
For the Court to assume to render judgment in that regard would be to determine rights not before the Court.
The original opinion is accordingly so reformed and petition for rehearing denied.
*Page 521ELLIS, C.J., and TERRELL and BROWN, J.J., concur.