48 S.C. 440 | S.C. | 1897
The opinion of the Court was delivered by
The facts agreed upon in this case are as follows: “James R. Bethea made his will in 1872, and it was admitted to probate after his death, in 1878. The will contained the following devise: l8. I give and bequeath to my wife, Mary C. Bethea, during her natural life, and at her decease, to my son, Robert R. Bethea, and to the lawful issues of his body, a tract of laud (described); and if the said Robert R. Bethea should die without lawful issues, the above named tract of land shall be divided equally among my other heirs.’ Robert R. Bethea, in 1872, was unmarried and childless, but he is now married, and has four children, one of whom was born after the commencement of this action. The life tenant, Mary C. Bethea, died before this proceeding was instituted. Robert R. Bethea has been twice married. The defendant, Reona Bethea, is a child of his
We think Robert L. Bethea takes a fee conditional in the land, devised. Whitworth v. Stzickey, 1 Rich. Eq., 404; Hull v. Hull, 2 Strob. Eq., 190; Hay v. Hay, 3 Rich. Eq., 384. The case of Whitworth v. Stuckey, supra, which has been repeatedly recognized and followed in this State, seems
The act of .1853, sec. 1976, Rev. Stat. 1893, relating to limitation of estates, is applicable to the will in this case, which was made in 1872, but, under that act, our construction of this will is the same. That act declares that “whenever * * * in any will of a testator hereafter dying, an estate, either in real or personal property, shall be limited to take effect on the death of any person without heirs of the body, or issue, or issue of the body, or other equivalent words, such words shall not be construed to mean an indefinite failure of issue, but a failure at the time of the death of such person.” Construing this act, in Simons v. Bryce, 10 S. C., 365, the present Chief Justice, then Associate Justice, said: “In construing a will which took effect after the passage of that act, we are required to read a devise to one and the heirs of his body, or to one and his issue, and in case of his death without heirs of his body or without issue, then over to some one else; as if the gift were to one and the heirs of his body, or to one and his issue, and in case of his death without leaving heirs of his body, or without leaving issue living at the time of his death, then over, in which case the limitation over would unquestionabfy be good.” Further on, in that same case, the Court said: “These words,
Robert R. Bethea, having a fee conditional in the lands devised, may dispose of the same, after the happening or fulfillment of the condition, birth of issue, as in this case, by alienation by deed in his lifetime. His deed of the land in question to Reona Bethea would convey a good title, if made as contemplated.
The judgments of the Circuit Court are affirmed.