39 S.C. 131 | S.C. | 1893
The opinion of the court was delivered by
The facts of this ease are so fully and clearly stated in the Circuit decree, which should be
It is very obvious that the controlling question in this case is as to the proper construction of the fourth clause of the will of the testator, Osmund Woodward, under which all parties claim. That question depends largely, if not entirely, upon the question, whether the rule in Shelley’s case applies in the construction of this will. It will be observed that the devise is “to each of my daughters,” naming them, “for and during the term of her natural life, to and for her sole and separate use, benefit and behoof, and in no wise to be subject or liable to the debts, contracts or encumbrances of any husband, and at her death to the issue of her body, who may be then living.” The further provision is, that “in case either of my daughters shall die without leaving issue of her body then living,” all the property previously given to her “shall be equally divided among her surviving sisters, to and for their sole and separate use, benefit and behoof respectively, for and during the term of their natural lives respectively, precisely in all respects as the original share or portion above devised and bequeathed to them respectively, and at their several and respective deaths, to the issue of their bodies who may be then living.”
The land in question (being the tract which had been allotted to Jemima Harrison, one of the daughters, by the executors under the terms of the eleventh clause of the will), upon her death in 1865, “without leaving issue of her body then living,” became divisible, in equal shares, amongst her four surviving sisters, of whom Begina Gadsden, the mother of plaintiffs, was one; and the practical inquiry is, what was the nature of the estate which she took in her undivided one-fourth part of said land"? Did she take a fee conditional, which, by the birth of issue, had become absolute, or did she take an estate for life, with remainder to the issue of her body (the plaintiffs) who
The judgment of this court is, that the judgment of the Circuit Court be affirmed.