16 S.C. 290 | S.C. | 1881
The opinion of the court was delivered by
Archibald McIntyre, having duly made and executed his last will and testament, departed this life in May, 1850, leaving his widow and nine children named in his will surviving, another child having been born soon after his death. All of these children now have issue living, one of them having had issue born since the commencement of these proceedings. The testator left a very considerable real and personal estate, which he disposed of as follows: “I give, devise and bequeath, after the payment of my just debts, to my well-beloved wife, Sophia McIntyre, for the term of her natural life, all my property, real and personal, to wit: [Here follows a description of the' property.] To have and to hold all the said property, real and personal, and the increase thereof, for the term of her
The widow took possession of all the property as executrix and tenant for life, and remained in possession until her death in February, 1880. After the death of the testator, but before the death of the widow, two of the sons named in the will, Richard and Archibald, died, each leaving one child: 'Richard leaving a son named Richard H., and Archibald leaving a son also named Archibald.
There is no controversy as to the disposition of the personal property, satisfactory provisions for its distribution having been made, and the only questiQn is as to the real estate — or rather the proceeds thereof — it having been sold under an order granted in these proceedings, which directs that the proceeds beheld subject to the order of the court.
The Circuit judge held that under a proper construction of the will of the testator each of his children took an estate for life in the realty, with remainder to their children in fee, and directed
There is no doubt that the rule in construing a will is that the intention of the testator must govern, unless such intention is in conflict with some rule of law. In this case, we suppose there is as little doubt that the testator only intended to give his children a life-estate, for he says so in express terms in the direct gift to them, and, in a subsequent part of his will, speaks of his children as life-tenants.
But this is not conclusive, for if this manifest intention comes into conflict with a well-settled rule of law, it cannot be carried into effect, but the intention must give way to the rule of law. The appellants contend that this intention of the testator comes into conflict with a rule of law which has been so long and so firmly settled as to entitle it to be called a rule of property, which is familiarly known as the rule in Shelley’s Case. Without entering into a consideration of the origin of this rule or the reasons upon which it was originally founded, it is sufficient for us to say that by that rule it is well settled that where there is a devise to A. for life, and, at his death, to his issue, the limitation to the issue serves only to enlarge the estate of A. to a fee-conditional, and does not create a remainder to the issue as purchasers, notwithstanding the manifest intent to the contrary. Whitworth v. Stuckey, 1 Rich. Eq. 404, and the- cases therein cited. So, that if, in this case, the devise were to the children
The terms are to the children for life, and, at their decease, “to the issue of them and their heirs forever.” So that the precise question in this case is, whether the words italicized in the preceding sentence are sufficient to take the case out of the operation of the rule in Shelley’s Case. It is not to be denied that there is no little conflict in the English cases upon this question; but we think the authorities in this State conclusively show that where the word “ issue ” is so qualified by additional words as to evince an intention that it is not to be taken as descriptive of an indefinite line of descent, but is used to indicate a new stock of inheritance, the rule does not apply.
In Myers v. Anderson, 1 Strobh. Eq. 346, the testator gave certain slaves to his son for life, and at his death to be equally divided between his two daughters “ during their natural lives,” and after their death “ to be the absolute property of the issue of their bodies forever.” The court held that the daughters took only life-estates with remainder to their issue as purchasers. In this case the court uses the following language: “ All the authorities agree that if the limitation be tó the heirs of the body or issue, and to their heirs, this constitutes them purchasers, as it shows an intention to give them an estate not inheritable from the first taker, but an original estate, inheritable from themselves as a new stock of descent.” It is true that this was a bequest of personal property, but as will be seen from the remarks of Dunkin, chancellor, in delivering the opinion of the Court of Errors in McLure v. Young, 3 Rich. Eq. 576, this principle was regarded as equally applicable to a devise of real estate.
In that case the devise was to the daughter of the testator for life, “ and at her death I give, bequeath and devise the same absolutely ánd forever to her lineal descendants; and in case she should die without lineal descendants (one'or more) living at the time of her death, then it is my will that the whole of said real estate revert to my estate and be disposed of as hereinafter
It will be observed that the additional words in both Myers V; Anderson and McLure v. Young, which were held to take those cases out of the operation of the rule in Shelley’s Case, were not so strong as in the case now under consideration. In the former the Avords tVere: “ To be the absolute property ” of the issue, and in the latter “ absolutely and forevrr,” which the court held Avere equivalent to a devise to the issue and their heirs; and these are the Avords used in this case.
In Lemacks v. Glover, 1 Rich. Eq. 141, there was a bequest of personal property to the use of the testator’s sister Jane, “ and after her death I give and bequeath the same to the heirs of her body, to them, their heirs and assigns forever,” and the court held that the words “heirs of the body,” which are stronger words of limitation than the word “issue,” were Avords of purchase — one of the grounds of the decision being that the additional Avords “to them, their heirs and assigns forever,” evinced an intention that such heirs should take in their ovvn right as- a new stock of inheritance and not successively and by descent from the first taker. In support of this decision Dunkin, chancellor, delivering the opinion of the court, in addition to two English cases there cited, relied upon the case of Dott v. Wilson, 1 Bay 452, where the bequest Avas to Sarah Dott “ during her life, (vvithout the control of her husband,) and at her death to the heirs of her body and their heirs and assigns forever; but if she should leave no issue, then to be disposed of as she should think proper.” In that case the court said: “That she [the
It will be observed that this distinguished chancellor, whose language has just been quoted, delivered the opinion of the court in Whitworth v. Stuckey, at the next succeeding term of the court, where he held that a devise to one for life, and at his death to his issue, there being no superadded words qualifying the term “ issue,” enlarged the estate given for life to the first taker to a fee-conditional, and that he soon afterwards concurred in the case of Myers v. Anderson, where the superadded words regarded as equivalent to the words “and to their heirs,” had
It seems to us clear that the case now under consideration comes fully up to the test laid down by Sir William Blackstone in the famous case of Perrin v. Blake, as to whether the rule in Shelley’s Case is to be controlled by the manifest intent of the testator. For this purpose, according to his opinion, two things must appear upon the face of the will: 1. “That the testator meant to confine the first taker to an estate for his life.” 2. “That he meant to effectuate that intent by some clear and intelligent expression óf a design to have the heirs of his son take by purchase and not by descent.”
Now it is perfectly manifest that the first requirement of this test is met by the terms of the will now under consideration, for the testator has, in express terms, declared his intention that his children should take estates for their lives only. It is conceded, however, that this, by itself, would not be sufficient, and we must, therefore, be also satisfied that the second requirement is met — that is, that the testator has expressed clearly his design that those who are to take after the children are to take by purchase and not by descent. The language which he used is, “to the issue of them and their heirs forever.” Now what does this language mean ? It cannot mean that the issue of the children are to take by descent, because, if that construction is placed upon it, then the result would be that the issue, if they could take at all, would take an estate in fee-conditional, while the language declares that the issue are to take in fee-simple, for it is clear that no more appropriate language could be used to create an estate in fee-simple in the issue than the language employed — to them and their heirs forever. Hence, to apply the rule in Shelley’s Case to the devise under consideration would defeat both of the intentions of the testator, declared in express terms: 1. That the children should take estates for their lives only. 2. That their issue should take estates in fee-simple.
Applying the language used by Johnston, chancellor, in his Circuit decree in Myers v. Anderson, which is quoted with approbation in the opinion of the Court of Errors in McLure v.
As to the second ground of appeal, it is not clear that the Circuit judgment is open to the objection therein taken. That judgment determines that the children of the testator take an . estate for their lives only, with remainder to their children in fee, and directs that the interest be paid to the life-tenants annually, and then concludes in these words: “ The corpus to be paid to the tenants-in-fee, or their guardians, as the life-estates determine,” and it is argued that as the life-estates preceding the remainders secured to the defendants, Bichard H. and Archibald McIntyre, had already fallen in, the words “to be paid * * * as the life-estates determine” might leave it doubtful whether these parties could receive Avhat they are now entitled to in fee. While the language used might afford room for some doubt, we think the intention is that those who are adjudged to be entitled in fee are entitled to receive their shares whenever it is ascertained that the precedent life-estates have fallen in, whether that occurs before or after the rendition of the judgment in the Circuit Court.
The judgment of this court is that the judgment of the Circuit Court, as herein construed, be affirmed.