143 S.E. 818 | S.C. | 1928
June 12, 1928. The opinion of the Court was delivered by This is an action instituted in the Court of Common Pleas for Spartanburg County, having for its object the construction of the last will and testament of Warren Drummond, deceased. Plaintiff is a devisee under said will, and the defendants are plaintiff's children and certain heirs at law of testator. The cause came on for a hearing before Hon. W. H. Townsend, presiding Judge, at the March, 1927, term of said Court, upon an agreed statement of facts. A demurrer interposed by defendants on the ground of nonjoinder of necessary parties defendant was heard at the same time. *199 Judge Townsend passed a decree overruling the demurrer and construing the will. Let the agreed statement of facts and the decree of Judge Townsend be reported.
From the said decree on circuit, the defendants appeal to this Court upon exceptions which present these two questions for determination: (1) Does the complaint state a proper case for a "class suit," or should all heirs at law of testator be made parties to the action by name? (2) Did the presiding Judge correctly construe the will?
As to the first question: The complaint alleges that the testator left surviving him as his sole heirs at law at the time of his death eight children, naming them, of whom plaintiff was one; that all of said children, except the plaintiff, have since died, but left surviving them many heirs at law, some of whom are married, dead, and scattered "to the four quarters of the world," so that the heirs of testator now living are very numerous, many of them being unknown to the plaintiff, and that it is impracticable and impossible to bring all of them before the Court; that all of the children of the plaintiff are made parties defendant, and for the reason that it is impracticable and impossible to bring in all of the heirs of the testator, the defendants, J.N. Drummond, O.C.E. Drummond, Angus Parsons, and Mrs. Vera Leonard, who are heirs at law of testator, are made parties defendant to this action for the purpose of appearing therein on behalf of themselves and all other heirs at law of the testator, who are now living, or may come into being in the future. We think the cases of Faber v. Faber,
We next examine the exceptions raising the second question. That portion of the will we are called upon to construe is as follows:
"I will and bequeath to my son, Pearce H. Drummond, *200 lot No. 2, lying on west side of first line in the above named division, joining lands of Aaron Arnold and others, said lot No. 2 to be rented, the proceeds to pay taxes for the same and the remainder, if any, to be added to said Pearce H. Drummond's interest. * * * Should Pearce H. Drummond or Susannah H. Drummond die without issue, the lands, lots Nos. 2 and 3, willed to Pearce H. and Susannah H. Drummond, to revert back to the heirs of my body."
Section 5323, Vol. 3, Code of 1922, is as follows:
"Whenever, in any deed or other instrument in writing, not testamentary, hereafter executed, or in any will of a testator hereafter dying, an estate, eithed 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."
The Circuit Judge correctly held that the children or issue of the plaintiff took no estate under the will, directly or by implication, and that the plaintiff took a fee defensible estate; but he erred in holding that it became indefeasible upon birth of his children. The authorities cited do not sustain this proposition. Such is not the law.
The above-quoted Section of the Code makes dying withoutissue a definite and not an indefinite failure of issue. Should the plaintiff die leaving issue his estate will become indefeasible, but the superadded words, "should he die withoutissue," lot No. 2 to revert back to the heirs of the body of testator, annexed a conditional limitation, which will take effect, if at all, in derogation of the preceding fee-simple estate. This annexed conditional limitation to the fee-simple estate previously given to the plaintiff rendered said estate liable to be defeated upon the happening of the contingency named, to wit, dying without issue. This view is fully supported by the following authorities: 1 Tiff., 189. Tiedeman, Real Property (Enlarged Edition) § 2812; Leake, *201
Land Law, 68; 2 Bl. Com., 172 to 175; 21 C.J., 1024; 40 Cyc., 1643. Brattle Square Church v. Grant, 3 Gray (Mass), 142; 63 Am. Dec., 725. Gray Perpetuities 32; 40 Cyc., 1591; 21 C.J., 1024, § 206. Walker v. Alverson,
The limitation over upon the dying without issue can take effect only as an executory devise. The heirs of the body of testator are designated as the executory devisees. It is thus seen that it is wholly impossible to tell at this time whether or not the plaintiff will or will not die without issue. That question cannot be determined during his lifetime.
It is the judgment of this Court that the judgment of the lower Court be modified in accordance with the views herein expressed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, STABLER, and CARTER concur. *202
