17 S.C. 545 | S.C. | 1882
The opinion of the Court was delivered by
The principal questions in this case arise upon the construction of a deed which is couched in very informal and inartificial language. Its material terms are as follows: “Know all men by these presents that I, Mark Cantrell, for the bare affectionate love I have to my daughter, Mary Burnett, and having special confidence in my brother Lanceford Cantrell and Joseph W. Martin as Trustees, I give to my daughter and the lawful heirs of her body the following property, or to the Trustees for her and her heirs’ use and benefit ninety-two acres of land lying .... reserving the use of the same during my life. And if my wife, Sarah Cantrell, is a longer liver than me, she is to have the use of the Home tract of land, for her support, and choice of the negroes and mares — 2 cows and other household and kitchen furniture, as my trustees for my daughter and her lawful heirs think proper, during life or widowhood. And it is my earnest desire that my trustees attend to [here some words are manifestly omitted] agreeable to the intention of this writing or conveyance.”
The first question presented is as to the nature of the estate which Mary Hammett took in the lands conveyed by said deeds. Both the referee, to whom the issues in the action were referred, and the Circuit Judge held that she took an estate in fee conditional, and we concur with them in so holding. The deed, as will be seen, is very informal, but the conveying words are to Mary Burnett “ and the lawful heirs of her body.” The authorities universally hold that these are the apt words, to create an estate in fee conditional, and we are unable to discover anything in the terms of this deed to take this case out of the well-settled general rule. The subsequent words “or to the trustees for her and her heirs’ use and benefit” cannot have this effect, for the word “ heirs” as there used must be construed as meaning the same class of heirs- — heirs of the body — which had previously been designated. The same remark will apply to the words “ lawful heirs” as used in the latter part of the deed. These words are not found in the habendtm, clause, as suggested in one of the arguments, for there is no such clause in the deed, and must be regarded as used to indicate the same class of persons referred to in the conveying part of the deed.
Nor can the fact that trustees are interposed affect the question. For, even if the deed should be regarded as a conveyance to the trustees for the use of Mary and the lawful heirs of her body, about which there might be a serious ques
Regarding then the estate as a fee-conditional, our next inquiry is whether it was liable for the debts of Mary Hammett, the first taker, in the hands of her heirs. In the case of Izard, v. Middleton, Bail. Eq. 228, cited with approval in Pearse v. Killian, McM. Eq. 231, it was held that landsJielcLin fee conditiona.l are bound, after the birth of issue, by the lien dr~áTtñdgment or decree, against the tenant in fee, in bar of the right of the issue to take per forma/m, doni. It seems to me that the same reasoning which led to this conclusion would necessarily lead to the conclusion that land so held would be assets for the payment of debts even though not reduced to judgment; and such was the opinion of the distinguished Chancellor Harper, who delivered the opinion of the Court in Izard v. Middleton. At page 235 he says: “ But if there had been no decree against Mr. Izard in his lifetime, yet if the heir takes only by succession from the ancestor, and in his right, it would seem to follow that whatever would be liable
The fundamental difference between an estate in fee conditional, after the condition has been performed, and an estate in fee simple is, 1st. That in the former the course of descent is confined to a particular class of heirs, and upon failure of such heirs the estate reverts to the donor; 2d. That the holder of such an estate can only dispose of it by some act which takes effect during his life. In a'll other respects their qualities and incidents are the same. In a grant of an estate in fee condi-\ tional, heirs of the body are not named on account of any bene- \ fit intended for them, or for the purpose of -cóntroiling or limiting the ancestor’s power of disposition durihg his life, but simply for the purpose of prescribing the course of descent, in case no such disposition is made. In the case of a fee simple estate the law prescribes that the estate shall descend to the heirs generally, in case the ancestor makes no disposition of the estate, while in the ease of an estate in fee conditional the instrument creating the estate confines the descent to a particular class of heirs. Both classes of heirs take by succession from the ancestor, and as in fee simple estates the heirs general take the estate subject to a liability for the debts of the ancestor, we see no reason why, in estates in fee conditional, the heirs of the body to whom the descent is confined should not take the estate in the same way.
Our next inquiry is as to the effect- of the disposition made by Mary Hammett, by will, for the sale of the lands held by her in fee conditional. In this State it has been settled that an estate in fee conditional is not the subject of devise. Jones ads. Postell, Harp. 92. To allow such a power to a» tenant in fee conditional would be to give him the power to disturb the course of descent fixed by the instrument creating
The points raised by the plaintiff’s third, fourth and fifth grounds of appeal cannot be considered by us, as there is no copy of the pleadings set out in the “ Case,” and we are not at liberty to assume that the Circuit Judge went beyond the scope of the pleadings in rendering his decree. He was bound by the 55th Buie of the Circuit Court to make due provision for the payment of debts before ordering the partition asked for; and the counsel for the plaintiff is in error in' supposing that it did not appear that the personal estate was insufficient for the payment of the debts, for the referee distinctly reported that the debts of Mary Hammett “ amounted to very nearly the value of her whole estate.”
The judgment of this court is that the judgment of the Circuit Court be affirmed.