10 S.C. 392 | S.C. | 1878
The opinion of the Court was delivered by
The land in controversy in this case was devised “ to Agnes McElwee, to her own use and possession during her natural lifetime, and at her death to any child or children she may have living at the time of her death; but if she should die not leaving any children or child alive at the time of her death, then, and in that case, the said tract of land and the before named negroes, with their future increase, together with the other property herein bequeathed to my daughter Agnes, shall revert and go back absolutely and unconditionally to any brothers and sisters and the children of any deceased brother or sister residing in this State at the time of her death, &c.” At the time of testator’s death, which occurred on the 15th November, 1854, Agnes was unmarried-, but she subsequently intermarried with one James McElwee and died on 20th September, 1875, without ever having had a child. Subsequent to her marriage she joined her husband in making a deed of feoffment and livery of seizin to one Samuel A. McElwee, conveying the land in dispute in fee, which deed bears date the 29th September, 1857. Samuel A. McElwee then conveyed the land to James McElwee, and he to the defendant, Wheeler. The plaintiffs and all of the defendants, except Wheeler, are the brothers and sisters of Agnes, and children of deceased brothers and sisters who were residing in the State at the time of the devise and death of the testator, and continued so to reside in the State until after the death of Agnes. The questions presented are: 1st. Whether the limitation to the brothers and sisters constituted a vested or a contingent remainder. 2d. If contingent, was the deed of feoffment and livery of seizin sufficient to bar such remainder? The Circuit Judge held that it was a contingent remainder and that it was barred by the deed of feoffment.
We think that the conclusions reached b^ the Circuit Judge are correct, and are so fully sustained by his reasoning and the authorities which he has cited that it is scarcely necessary for us to add
The italics are ours, and the difference between the case stated by Fearne as an illustration of the rule relied upon by the appellant and that now under consideration is that in the former the remainderman, from the very instant the limitation was made, had the right to the possession upon the falling in of the precedent estate, which right did not depend upon any contingency but only upon the death of A, — an event certain to happen, — while in the latter the right remained contingent, being dependent upon the happening of two uncertain events during the whole of the existence of the precedent estate, and it could not be known certainly that such right would ever be entitled to become vested until the determination of the particular estate. Again, Fearne, on page *217, says that “ whenever the remainder is limited to a person not in esse, or not ascertained, or whenever it is limited so as to require the concurrence of some dubious, uncertain event, independent of the determination of the preceding estate and duration of the estate limited in remainder, to give it a capacity of taking effect, then the remainder is contingent. Now, in this case, the remainder is limited to persons some of whom may not have been in esse — the children of deceased brothers and sisters — because after the death of the testator some one or more of the brothers or sisters might have died leaving children born subsequent to the death of the testator who were residing in this State at the time of the death of Agnes. If so, it is difficult to see how they could be excluded. How the fact may bé in reference to this matter does not appear, as the “case” only discloses the names of such children of deceased brothers and sisters as were living in this State at the time of the death of the testator who continued to live here until the death of
As to the second question, we are content to rest that upon the reasoning employed and the authorities cited by the Circuit Judge. For even assuming that a married woman could not convey her life estate without makmg the acknowledgment in the manner prescribed by the Act of 1731, as amended by the Act of 1767, yet the deed of feoffment, in that case, would be regarded as the deed of the husband alone; and by the common law, which in this respect had not at the time this deed was made been altered or modified in this State, the conveyance of the husband alone operated as a discontinuance of the wife’s life estate, and thus destroyed the estate in remainder by the determination of the particular estate before the happening of the contingency upon which alone the remainder could vest. — 2 Kent Comm., 133, 5th ed.; 1 Wash, on Real Prop., 578.
The judgment of the Circuit Court is affirmed.