16 S.C. 220 | S.C. | 1881
The opinion of the court was delivered by
This was an action to recover a tract of land. Adam Shuler died in 1848, leaving a will, which contained the following residuary clause: “The balance of my estate, both real and personal, I will and desire after my death to be equally divided among my ten children, viz.: To my son, Charles P., one equal share” [naming them all in the same way. And as to his daughter, Jennet, the words are]: “ My daughter, Jennet, one equal part during her natural life ; after her death to he equally divided among her children,” &c. After the death of the testator his residuary estate was divided and the land in dispute was allotted to Jennet, who was then the wife of John Reese, and she and her husband duly conveyed it (1849) to her brother, Bennet Shuler, and Reese, the husband, in addi
Jennet Beese died about six years ago, leaving surviving her two children, Martha Jane Bannister, wife of Bousam Bannister, and Edward F. Beese, the plaintiffs, and two grandchildren, Altamont Z. Bannister and Charles U. Bannister, children of a deceased daughter, Margaret, who died after the death of the testator but before the death of Jennet, leaving also a husband, Stephen Bannister. These heirs of Margaret refused to join in the action as plaintiffs, and were made defendants. Stephen Bannister answered, echoing the prayer of the plaintiffs for relief, but the sons, Altamont and Charles, did not answer at all.
The defendant, Bull, demurred for want of necessary parties plaintiff: First, because Stephen, Altamont and Charles Bannister were not made plaintiffs, and, second, because Bousam Bannister, the husband of Martha Jane, should have been joined with her as plaintiff, and without him she had not capacity to sue. The demurrers were overruled, and Bull answered, claiming title to the land, and that he had made improvements upon it. The case was heard on the merits, and, under the rulings of the judge, the jury found for the plaintiffs the whole land in dispute. The defendant, Bull, appeals to this court. The exceptions are long and numerous, being seventeen in number, and we will not attempt to follow them seriatim,, but to consider all the points which should properly be decided at this time.
The leading question in the case, made by exceptions 2, 3, 12, 13 and 15, is as to the rights of the parties under the will of Adam Shuler. The plaintiffs claim that the will gave a fee-simple to “the children” of Jennet, who were in esse at the time the will took effect, subject to a life-estate which was carved out for Jennet. That at the time of testator’s death she had three
In the construction of wills,, the first and great object of inquiry should be, What was the intention of the testator ? That intention must be gathered' from the paper itself, and sometimes, from the inaccurate use of words which have a technical as distinguished from the ordinary meaning, there is difficulty in ascertaining the intention; but no such difficulty exists in this ease. The word “estate” in the phrase “balance of my •estate, both real and personal,” manifestly referred to what still remained, of his own properly which he was about to give, and not to any of the parts to be given out of that residuum. So, too, in regard to the words “to be equally divided,” reference was had to the.size of the shares, and not to the terms or conditions which he might attach to any one of them. The word “ equally,” in its context, does not mean that the shares of the ten children were to be given and held in the same manner, but tó be equal in quantity.
There is as little difficulty in regard to the word “children,” the legal construction of which accords" with its signification, namely, as designating the immediate offspring; for in all the cases in which it has been extended to a wider range of objects it was used synonymously with a word of larger import, as issue. 2 Jarm. 690, 5th Am. ed. The word indicates a class of persons, and not a line of indefinite descent, like “issue” or “heirs of the body.” This is not a fee-conditional, for the reason that the land is not given to Jennet and the heirs of her body, but to her expressly for life. It is true that the rule in
■ It is true Jennet conveyed the land to Bennet Shuler, but she could convey no more than her life-estate, and her donee could not hold advei’sely to the remaindermen until their right to possession accrued at the death of the life-tenant. The children are not estopped by having received shares of the estate of their father, John Reese, whose bond of indemnity may, by possibility, make his estate liable over, but cannot affect their rights in the land. It was not error in the Circuit judge to hold that the plaintiffs are entitled to recover.
It is insisted, however, that the judge erred in overruling the demurrers for lack of necessary parties as plaintiffs The heirs of Margaret, to whom her vested third had descended, refused to join in the action as plaintiffs, and were thereupon made defendants. The demurrers made the point that such omission was fatal. That is to say, the proposition is that one tenant in common cannot sue for his interest in land without joining with
The case before us does not fall within the operation of this .section. This is not a suit to partition land among tenants in common, in which it might be necessary to have all the co-tenants before the court as plaintiffs or defendants in order to have a complete determination of the questions involved. But this is purely a legal action for the recovery of land — an action of trespass to try titles against a stranger. The last paragraph of the section cited, allowing “one of more to sue for the benefit of others,” does not apply to such a case, but was manifestly intended for creditors of an insolvent estate and cases of that character where the interest is in common. So, also, as to the first paragraph in regard to making all parties who-are united in interest. That does not control this case, for the reason that the interests of co-tenants are not united. They may be said, in -one sense, to have a common interest, but according to our decided cases they are not, as against a-stranger, united in interest in the sense of this section of the code. They have interests in the same property while it remains undivided, but such interests are distinct. Each has a right to the extent of his share. Indulgence is extended in allowing tenants-in-common to join in an action against a stranger, but they are not required to do so. ■“ Tenants-in-common may sever, and any one of them may bring ejectment for his share, and, upon proof, recover it, or may bring ejectment for the whole, and, upon proof, recover his share.” Dorn v. Beasley, 6 Rich. Eq. 420, in the late Court of Errors, where the authorities are cited.
The heirs of Margaret refused to join in the action, and we
But we think Rousam Bannister should have joined his wife,. Martha Jane, in bringing the action. At the time the constitution was adopted the interest of Martha Jane, under the will of Adam»Shuler, had vested, and her. husband’s rights had attached, although she was not entitled to the possession until the .death of the life-tenant, which occurred after the adoption of the constitution. That instrument did not operate retrospectively so as to divest the interest of the husband, which still remains and might be levied for his debts. Bouknight v. Epting, 11 S. C. 72.
The fifth and sixth exceptions state that the Circuit judge,, upon being requested, refused to charge the following proposition, viz.: “ That a verdict cannot be found in favor of the-defendants, Stephen Bannister, Charles U. Bannister and Altamont Z. Bannister, and, if a verdict be found in favor of the plaintiffs, it can only be for their aliquot parts of the land, not exceeding two-thirds thereof.”
We think the refusal of the judge so to charge was error. We have already seen that the parties named as defendants were-not necessary parties in order to determine the rights of those who were plaintiffs, and those rights were in no way enlarged by the fact that these parties were named as defendants.
This was an action at law tried by a jury, and the plaintiffs-could not recover more than they, in their own right, were-entitled to, only, because those who owned the remaining share were before the court as defendants. Nor, could these defendants, whose position was antagonistic, have an interest in the-verdict recovered against the defendants, including themselves.
The judgment of this court is that the judgment of the Circuit Court be reversed and the case remanded for a new trial, with leave to apply to the Circuit Court for an order to amend by making Bousam Bannister a co-plaintiff with his wife, Martha Jane Bannister.