Hill v. Thomas, 11 S.C. 346

11 S.C. 346 | S.C. | 1879

The opinion of the court was delivered by

Hasicell, A. J.

The appeal is from the construction of a will, and the only question is as to what estate in land is devised by the following words, to wit: “ I give and bequeath to my son, G. W. Hill, * * * the land whereon I now live. * * * Now, the condition of the above gift is, that the property, including that given off before, * * * is to remain the property of the said G. W. Hill and his child or children; and in case the said G. W. Hill should die and not leave any living child or children, why then the said property” over. The will is set forth in full in the statement of the case.

The Circuit judge decides that the devise is to G. W. Hill for life, with remainder to his children. The appeal is on behalf of the children, several of whom are minors, and they claim to take jointly with their father during his lifetime, with remainder in fee for those who may survive him. The whole appeal rests upon the proposition that this case is governed by the second resolution in Wild’s case, which is as follows: “ If a man devises lands to A and to his children or issue, and he then has children •or issue of his body, then his express intent may take effect according to the rule of the common law; and no certain and manifest intent appears in the will to the contrary.” The parent and the children thus take jointly. The other points presented by the appellants are mere deductions based upon the above proposition, which, therefore, should be first considered. The resolution relied on relates only to cases of direct devise to parent .and children — as if to A and B, both' to take immediately. In this case the gift to G. W. Hill is separate and distinct. The land is first given to him absolutely. A clause is then inserted, •called li the. condition of the above gift,” and containing a provision that the said property previously given to G. W. Hill shall not only remain his, but shall also remain for his “ child or children.” The gift to the children is of the whole property, just as it had been to G. W. Hill. It is thus given to two persons or classes of persons, to each in entirety, but in this way, i. e., it is given to A, but it is made a condition that it shall remain ” for B. The term child or children is primarily a word of purchase, and not of limitation, and can only be given the latter as its secondary meaning when such construction is rendered necessary by the context. No such necessity appears in this case. On the contrary, the primary meaning is admitted, and it expresses the real intention of the testator. Child or children, then, is the same as a designated person. It is as if the property had been given to A, when if nothing more had been said the gift would have been in fee simple under the act of 1824. Rev. Stat. 443. But the expression is added, as a condition of the above gift, that the property is to “ remain to A and B,” and “ in case the said A should die and not leave B living, then over.” The real intention cannot be doubted. The' gift of the whole property was already to A, and there is nothing in the context to justify the idea that the testator meant to diminish the amount. In fact, the contrary is shown. The testator’s design was to divide his property into three parts, one to G. W. Hill to remain to his children, another to J. T. Hill, and the other to two grandsons, together representing a daughter. G. W. Hill is charged personally with sums payable to the other son and the two grandsons for purposes' of equalization. Again, in a limitation over of the property devised to J. T. Hill, to “ G. W. Hill and his child or children,” and to the two grandsons and their children, the testator explains by saying, “ that is, G. W. Hill one-half, and the Scaife or Seaifes the other half.” That is to say, G. W. Hill was to enjoy the whole property devised to him and his children, but the time of his enjoyment is limited. It was to him and to his children after him. It might be said that such was the language in Johnson v. Johnson, MoM. Eq. 347, and the first taker was held to have taken a fee conditional. But the Chancellor says it would have been different in Johnson v. Johnson if there had been a limitation over in the-event of the first taker having no children living at her death. “ That would show the intention of giving the remainder to the children living at her death, and would restrict the mother to a life estate.” That is this case. Nor, to return, is there, on the other hand, any evidence that the “ child or children ” shall take less than the whole. The only mode by which both can have the whole property is for them to take it successively. It is given to the father. He is, beyond peradventure, a taker at the beginning. When can the children take ? Certainly not at the beginning, for then there was only one. The word “ remain,” which constitutes the gift to the child or children, perhaps contains the explanation. It has within it the meaning of continuance, and, consequently, when there are several actors, the idea-of succession. The property was already in the father by the-preceding gift. The condition permits it to continue or remain-(in) him, hut adds that it shall remain (for) his child or children. It is the same as if he had said it shall go to A, but it must remain for B. There is no difference between that and the common expression, “ for A and then for B.”

In the case of Sisson v. Seabury, 1 Sumn. 235, the devise was to “ A and his male children, lawfully begotten of his body, and their heirs forever, to be equally divided among them and their heirs forever.” The court, after determining that the “male children ” did not mean male issue indefinitely, found no difficulty in fixing the estate in A to be for life only, with the fee simple in remainder to the male children. The fact that the devise was to the male children and their heirs, &e., was of great force in that case, but the difference in words in that respect is not material, for, under the act of 1824, unless the contrary appears, the devise to children is the same as to children and their heirs. The court, per Story, J., says: “ Where words of devise are used, giving an estate to A and then to B, no one would doubt that the estate to A was a mere life estate, although not so expressly limited. It results from a general rule of law. If the testator, instead of designating the second devisee by name, uses words which are commonly a mere descriptio personarum, the conclusion is equally natural that the estate to A is for life only'.' We are at liberty to abandon this conclusion only when there is an apparent intent to use the words as words of limitation and not as words of description — ‘ male children are not, technically speaking, words of limitation, but of description of persons. The court ought, then, clearly to see that they are used as words of limitation before it abandons their common meaning.” The word “then” did not occur in the devise, nor was there “ remain ” to qualify a preceding absolute gift to a preceding devisee. This case is much stronger than the case of Sisson v. Seabury, which is recognized authority, and supported by a long array of the decisions of the English courts. In that case the point was different, but the line of approach on one side is the same as in this. A' had no child at the time; the second resolution in Wild’s case, was, therefore, not applicable. But it was contended that he took an estate tail under the first resolution in Wild’s case. It was held that he took an estate for life, and the reasoning which leads to that conclusion is equally applicable to that point in the case before us. The fact that there was one child of G. W. Hill in esse at the time of the making of the will, would be of more importance in the view urged by the appellants were it not that, by the addition of the word “ children,” the testator had shown it to be his intention to include after-born children who could not take immediately. For it is only where the children are to take immediately that the second resolution in Wild’s case can be said to govern. With regard to the effect of “children ” as a plural, where there is but one child in being at the time, the conclusion is put quite forcibly in Hannan v. Osborne, 4 Paige Oh. 336, cited in the arguments. That case, too, is very much in point throughout. See, also, Sisson v. Seabury, with the authorities there cited by Mr. Justice Story.

The judgment is affirmed. Motion refused.

Appeal dismissed.

Willard, C. J., and McIver, A. J., concurred.