56 S.C. 346 | S.C. | 1899
Lead Opinion
The opinion of the Court was delivered bv
This action was commenced on 23d July, 1898. All the defendants except Martha J. Latimer answered. The cause came on to be heard before 'his Honor, Judge Gage, at November, 1898, term of Court of Common Pleas for York County, on the pleadings and testimony and admissions of attorneys in writing. By his decree, amongst other things, the Circuit Judge held in the construction of the will of David F. Jackson that his widow, Mrs. P. L. Jackson, took a life estate in all of testator’s property, real and personal, and that said estate was not charged with her support, during life or widowhood, as distinct from a life estate. The appeal of Frank Latimer only questions such said conclusions of the Circuit Judge in the two grounds of appeal presented by him, to wit: 1st. That his Honor erred in construing the will of D. F. Jackson, deceased, as conferring on his 'wife, Mrs. Parmela L. Jackson, an estate for life in all his lands “described in the devise to- his four children.” 2d. “For error in not construing the said will in charging the said land with the support of his wife during her life or widowhood.”
We ought to say that in the decree the defendant, Martha J. Latimer, is decreed to have no interest in the estate, and she has not appealed from such decree. It is, therefore, fixed that said defendant, Martha J. Latimer, has no interest in the estate of her father, D. F. Jackson, deceased.
We think the Circuit Judge was in error in construing the will in question, for the testator did not give his widow any estate in his lands or personal property. On the contrary, he was careful to give his whole estate to the four children she had borne him — he only allowed her to> use it for support along with the support of her four infant children who were his legatees and devises. The two cases in our books : Sims v. Aughtery, 4 Strob. Eq., 103, and Lanham v. Lanham, 38 S. C., 129, seem to support our views. In the first case cited the language of the testator in effect was : “He directs all the rest and residue of his estate shall remain in the possession of his wife during her life or widowhood, under the direction of his executors, with a discretionary po wer on their part to deliver any portion of it as a loan to any of his sons, with the exception of his son James, who was inhibited from receiving any part of the negro property. After the death of his wife, ‘all such estate’ (that is, the estate he had previously directed to be left in the possession of his wife), ‘with the increase arising therefrom, was to be collected together, and appraised and equally divided among his four sons, &c.” The question arose as to what estate was thus given by Sims to his wife, and the Appeal Court in equity decided that the testator gave his wife no estate, but provided for her a comfortable support and maintenance out of the property spoken of as the residue. So, also, in the second case cited, Lanham v. Lanham, supra, when the testator
It is, therefore, the judgment of this Court that the judgment o-f the Circuit Court be modified as herein required. Let the action be remanded to- the Circuit Court fo-r such further proceedings as may be necessary.
Dissenting Opinion
dissenting. This case is not governed by the rule announced in the cases cited by Mr. Justice Pope, but by the familiar principle that the use of property during lifetime is in effect a life estate. I, therefore, dissent from the opinion of Mr. Justice Pope.