9152 | S.C. | Jul 31, 1915
July 31, 1915. The opinion of the Court was delivered by This was an action commenced for the purpose of having the land described in the complaint sold, and proceeds distributed among the parties entitled thereto as claimed in the complaint. The case was referred to the master to take testimony and report to the Court. The case was heard by his Honor, Judge Moore, at the March term of the Court, 1915, who filed a decree finding in favor of the plaintiffs; from this decree P.C. Temple appeals. All questions raised by the appeal relate to the proper construction of the will of Basil Callaham, or rather in regard to *423 the provision that he made in reference to his wife, Eliza A. Callaham, which is as follows:
"I give and bequeath unto my beloved wife, Eliza A. Callaham, my home tract of land containing one hundred and eighty-six acres; also a tract of land adjoining the home tract, known as the Burton tract, containing about thirty acres, to have and to hold to use and possess during her natural life or widowhood, but in the event she should marry, or if she lives single until she dies, in either case, it is my will that the above named land be sold by my executors hereinafter to be appointed, if either of them be living, and if neither of them be living, then by other proper authorities in law, and proceeds of the sale of land, be divided in the following manner: One-third to her or her heirs, one-third to the children of my son, John William Callaham, now dead, one-third to my daughter, Mary Jane Robinson, now the wife of Hugh Robinson, or if she be dead, to her children that may be living, all to share and share alike."
Mrs. Callaham never married again, and died in the year 1913, leaving of force a will, in which she devised to P.C. Temple, one-third interest in the tract of land devised to her under her husband's will.
In November, 1914, this action was commenced, the plaintiff's claiming that under the will of Basil Callaham, that the wife, Eliza A. Callaham, had nothing in the land but a life estate, and that she had no right to will the same to P.C. Temple.
We see no error on the part of his Honor in making the decree that he did. A proper construction of the will of Basil Callaham shows that he devised: 1. The whole of the two hundred and sixteen acres to his wife, Eliza A. Callaham, for her natural life.
2. If his wife, Eliza A. Callaham, should marry again the two hundred and sixteen acres of land to be sold, and one-third of the proceeds to go to the wife. *424
3. If wife, Eliza A. Callaham, should die without marrying again, the two hundred and sixteen acres to be sold, and one-third of the proceeds thereof to go to her (the wife's) heirs.
All exceptions are overruled. Judgment affirmed.