41 S.C. 209 | S.C. | 1894
The opinion of the court was delivered by
In this action the plaintiffs seek to recover possession of two tracts of laud, which, for convenience, may be designated as the Saluda tract and the Turkey Creek land. The plaintiffs base their claim entirely upon the will of their grand-father, the late James H. Shaw, and undertake to set out in their complaint those portions of the will under which they claim, making, however, the will, which accompanies the complaint as an exhibit, a part of their complaint. Those clauses upon which they rely, as taken from the will, which is set out in the “Case,” read as follows: “I will to my beloved wife, Mary Shaw, for her own separate use and behoof, a tract of land situated in the district aforesaid, on Saluda River, known as the Cains and Ware tract, containing seven hundred and fifty-two acres, more or less. I also give and bequeath to my wife, Mary Shaw, for and during her natural life, my home tract [here follows a description of said tract], all to be known as the home place, with all my stock, plantation tools, household and kitchen furniture, blacksmith tools, and provisions.” In the next clause the testator directs that certain of his property, describing it, be sold by his executor for the purpose of paying debts and funeral expenses'.
The next clause reads as follows: “I will to my son, Richard P. Shaw, a sorrel horse named Charley; I also give him all the balance of my real estate, not before disposed of, consisting of two houses and lots at Donaldsville, known as the store lot and the J. F. Donald lot, also the balance of land not otherwise
It is alleged in the complaint that Eichard P. Shaw departed this life on or about the 15th of September, 1891, leaving two children, the plaintiffs herein; that defendants are in possession of the premises in dispute, claiming to hold the same under conveyances from Eichard P. Shaw, or G-. M. Mattison as executor of the will of James H. Shaw. But, strange to say, there is no allegation in the complaint that Mary Shaw is dead, though it is there stated that she never disposed of the Saluda tract. Inasmuch, however, as this omission to allege the death
The question came before his honor, Judge Izlar, upon a demurrer to the complaint upon the ground that the allegations contained therein were not sufficient to constitute a cause of action; and he having reached the conclusion that the plaintiffs had no title or interest under the will of their grand-father, rendered judgment sustaining the demurrer and dismissing the complaint. From this judgment plaintiffs appeal upon the several grounds set out in the record; but as these grounds really make but a’single question, we do not propose to consider them seriatim. That question is whether these plaintiffs, as issue of Bichard P. Shaw, can, under any proper construction of the will of James H. Shaw, claim any title to or interest in the land in controversy.
It appears that the same question under the same will came before the courts four different times. First, in the case of Grant v. Thompson (which does not seem to have been reported), the question came before the Court of Equity, where it was held that Thomas took an estate for life only, with remainder by implication to his issue as purchasers. Second, in the case of Carr v. Jeannerett, 2 McCord, 66, the same question came before the Court of Law, when it was held that Thomas took an estate in fee, and there was no remainder by implication in favor of the issue as purchasers. Third, in the case of Carr v. Green (which is not formally reported, though the opinion of the Court of Appeals in Equity is appended to the case just mentioned, and may be found in 2 McCord, at page 75), where that court adhered to its previous conclusion in the case of Grant v. Thompson. This conflict between the courts of law and equity arose at a time when, under the judiciary system, there were two courts of final resort, one a Court of Appeals of Law, composed of all the Law Judges in the State, with jurisdiction to hear and determine all appeals from the Law Courts, and the other a Court of Appeals in Equity, composed of all the Chancellors in the State, with jurisdiction to hear and determine all appeals from the Equity Courts. But owing to the conflict of opinion between these two courts of appeal upon this and other important questions, the General Assembly, in December, 1824, passed an act abolishing both of these two courts of appeal, and substituted'in their stead a separate Court of Appeals, composed of three judges, with jurisdiction to hear and finally determine all appeals both in law and equity. After the establishment of this separate Court -of Appeals, the same question, under the
It seems to us that this well settled principle is conclusive of the present case. It being manifest that there is no direct gift to the issue of Richard P. Shaw, such issue could take only by implication; and even if it should be conceded that issue may take as purchasers by implication in some cases, yet the case of Carr v. Porter, which practically overrules the case of Carr v. Green, cited and relied upon by counsel for appellants, conclusively shows that such implication can only arise from necessity appearing on the will. And we are unable to discover any such necessity on the face of the will of James H. Shaw. Take the devise of the Saluda tract. There can be no doubt that the devise of that tract to Mary Shaw, as first stated, would invest her with the fee, the word heirs not being necessary to create such au estate by will. What follows to change such a result: “should my wife, Mary Shaw, die without making disposition by will or otherwise of the Saluda tract of land, given to her by the provisions of this will, and should my son R. P. be also dead, leaving no issue, then I desire that the said tract of land should be sold and equally divided between R. T. Kirkpatrick” and others. This language, so far from implying an intention on the part of the testator to create an estate in remainder by implication in the issue of R. P. Shaw, rather implies the reverse. In the first place, the language necessarily implies that the testator still recognizes the fact that he had given an estate in fee to his wife, for otherwise be could not with any sort of propriety have spoken of her dying “without making disposition by will or otherwise of the Saluda tract;” and in the next place his idea manifestly was that if his wife died without disposing of that property, that it would descend to Richard as her heir,
As to the Turkey Creek place, there is no doubt that the language in which that place was devised to Bichard P. Shaw would create in him an estate in fee simple, unless there was something in the will manifesting some other intention. The language relied upon for this purpose is: “Should my son, B. P. Shaw, die leaving no child or children, and his mother being dead, I desire that the lots before mentioned at Donaldsville shall go to Margaret Dodson, the wife of A. M. Dodson, during her natural life, and then to her children, and under the same provisions [meaning, doubtless, the same contingencies] the lands before mentioned on Turkey Creek shall go to my beloved nieces and nephews, or their legal representatives.” Now, this language, so far from raising any implication of an intention on the part of the testator that Biehard was to take an estate for life only, with remainder to his issue, seems to us to indicate an intention that Bichard should take the Turkey Greek in fee; but if he should die leaving no children, and his mother should be then dead, then that the Donaldsville lots should go to Mrs. Dodson, and the Turkey Creek lands to the testator’s nephews and nieces. So that it seems to us, that even if we could disregard the doctrine laid down in Carr v. Porter, supra, the result would be the same; for, confining our attention to the language of the will, the intention of the testator clearly was not to create any life estate in either the Saluda tract or the Turkey Creek place, with remainder to the issue of Bi chard.
■ It seems to us that there was no error in the view taken of the case by the Circuit Judge.
The judgment of this court is, that the judgment of (he Circuit Court be affirmed.