37 S.C. 255 | S.C. | 1892
The opinion of the court was delivered by
This action came on to be heard by his honor, Judge Witherspoon, at the fall term, 1891, of the Court of Common Pleas for Charleston County, and on the 4th day of January he filed his decree. From this decree an appeal has been taken by two sets of defendants, viz., the Thomas minors and the Dukes minors. There is no question of fact in
A brief reference to the facts may not be amiss just here. Stent Elmore died many years ago. Emelia, his wife, lived until the 17 September, 1889. The children born to Stent and Emelia were three, James W. Elmore, Pamelia E. Elmore, and Mary Ann Elmore, all of whom died during the lifetime of the surviving life tenant, Emelia Elmore.' James W. Elmore died in 1856 or 1857, unmarried and without issue. Pamelia Elmore, having intermarried with one Thomas Alexander, died 28 April, 1872, leaving two children, both of whom survived the life tenant, one of whom, Florence Faulk, has died, leaving a husband and five children. Mary'Ann Elmore, who had married one Dukes, died 17 July, 1888, leaving children and grand-children. The names of all these parties are set forth carefully in the “Case,” and it will be unnecessary to state them again, especially as the master’s report and the decree of the Circuit Judge must be printed. All the children being-dead, and there being children and grand-children of such children of Emelia aud Stent Elmore alive at the death of the
Three views have been p resented to this court for its consideration : 1. That the proceeds of sale shall be so divided as that the children and grand-children of Mrs. Mary Ann Dukes shall receive one-half thereof, and the other half to be divided among the children and grand-children of Mrs. Pamelia Alexander per stirpes. 2. That such proceeds shall be divided amongst the ten parties who stood, on the death of the life tenant, as heirs of her body, under the laws of this State, per capita. 3. That such proceeds shall be divided among all the grandchildren and great-grand-children of the life tenant, per capita.
"We will first consider the general principles of our laws pertaining to an estate, provided for such persons as shall, at a particular time named by the testator, sustain a particular character. Then we will briefly notice the particular circumstances that are alleged to control the distribution here.
We think we may now announce as the law of this commonwealth, that, when the words, “heirs of the body,” occur in a devise, accompanied by the words, “share and share alike,” or “egually,” or “in egual parts,” or kindred words, and also the words, “their heirs, executors, administrators, and assigns,” that we must look to the statute of distributions of our State for the parties who shall answer the description, and, therefore, take the devise, but that the method of distribution is fixed by the devise itself to be per capita, and not per stirpes, and that, the estate is one of purchase, and not of descent. It
To illustrate our meaning by stating the facts in the last quoted case. The will of Peter Sinkler gave the use of certain property to his sister, Jane Glover, for life; Mrs. Glover, at the time of her death, had but one child, Dr. Glover; testator, after the death of the life tenant (Mrs. Glover), bequeathed such property ‘ ‘to the heirs of her body, to them and their heirs andassigns, forever.” Mrs. Glover died fifty-one years after her brother’s death. She had four other children born to her, all of whom, but one (Mrs. Lemacks), died before Mrs. Glover, the life tenant, and all were survived by children. The question was made as to the distribution. It was held, that Dr. Glover took one share, Mrs. Lemacks one share, and each grand-child who was the child of a deceased child, took one share each. Both Mrs. Lemacks and Dr. Glover had children, but they were denied participation in the estate. Why? Because, at the death of Mrs. Glover, the life tenant, although her lineal descendants, they were not her heirs, under our statute of distri
It follows, therefore, that it is the judgment of this court, that the judgment of the Circuit Court be reversed, aud the cause be remanded to the Circuit Court, to carry into effect the principles herein announced.