52 S.C. 554 | S.C. | 1898
The opinion of the Court was delivered by
This was an action for the specific performance of a contract for the sale of land, and the only controversy between the parties is, as to whether the plaintiff is able to make a good and sufficient title to the land. The case was heard by his Honor, Judge Watts, upon an agreed statement of facts, a copy of which, together with a copy of the will of John Holly, through which plaintiff traces his title, is set out in the case. It seems that the land, which is the subject of the contract, was allotted to Mrs. E. A. Roundtree, a daughter of John Holly, under the fifth and sixth clauses of his will, and the controversy turns upon the proper construction* of the sixth clause. It appears that Mrs. Roundtree, as well as her husband, John B. Roundtree, are still living, and that they
The plaintiff, as we understand it, claims that, under a proper construction of the will of John Holly, J. B. Round-tree’s wife, Mrs.-E. A. Roundtree, is entitled to an estate for her life in the land, with remainder to the heirs of her body in fee; and that J. B. Roundtree, as the sole heir of the only heir of the body of his wife, was entitled in fee to a vested remainder in the land upon the termination of his wife’s life estate; and that the plaintiff, by his purchase at sheriff’s sale of the interest of John B. Roundtree, became the owner in fee, after the termination of Mrs. E. A. Round-tree’s life estate; and that as the contract for the sale of the land to the defendant was entered into “expressly subject to the life estate of E. A. Roundtree,” he is able to comply with the terms of such contract, by making a good title in fee, subject only to the life estate of Mrs. Roundtree, as provided for in the contract.
The defendant presents two questions, by way of objection to the title which plaintiff tenders. 1st. Whether the words “heirs of their bodies,” as used in the sixth clause of John Holly’s will, are words of purchase or words of limitation. 2d. If used as words of purchase, are the remainder to the “heirs of their bodies” vested or contingent.
It is stated in the decree of the Circuit Judge, that “The defendant expressed his willingness to accept the title, if the words ‘heirs of their bodies,’ as set forth in the sixth clause of the last will and testament of John Holly, deceased, were used in the sense of purchasers; and, if not, and such words were used as words of limitation, then he is unwilling to accept said title. And the defendant further contended that, if the words ‘heirs of their bodies’ are used in the sense of words of purchase, and the heirs of the body
From this judgment defendant appeals, raising the same questions as those stated above. There are other questions which might arise under contingencies not impossible in the eye of the law; but as no such questions were raised or considered in the Circuit Court, and are not presented by the exceptions, we do not propose to consider or suggest them, but will confine our attention to the questions presented by the record, having only alluded to the subject for the purpose of avoiding any inference that this Court has overlooked a possible aspect of the case.
The sixth clause of the will of John Holly, upon which the questions presented arise, reads as follows: “The land, stock, provisions, other personal property, choses in action or money, which may, under the provisions of this will, be allotted to my daughters and grand-daughters, are to be taken and held by Octavius B. Owens, his heirs, executors, administrators and assigns, forever, in trust for the sole and separate use of my said daughters and grand-daughters, respectively, for life, and, upon their respective deaths, to go and vest in the heirs of their bodies respectively, in such shares as they would take as their representatives at law, free and discharged of all further trusts and limitations.” Inasmuch as there are no duties imposed upon the trustees, for the performance of which it would be necessary for the legal estate to remain in him, we agree with the Circuit Judge that the statute executed the use and carried the legal estate directly to the beneficiaries. We shall, therefore, consider the case as if the land in question were directly devised to Mrs. E. A. Roundtree for life, and upon her death
In Whitworth v. Stuckey, 1 Rich. Eq., 404, the testator devised lands to his son, “for and during his natural life; at his death, to the lawful issue of his body; and if he should die without lawful issue living at the time of his death,” then over; and it was held that the limitation “to the lawful issue of his body,” served only to enlarge the estate of the son to a fee conditional at common law, and did not create a remainder to the issue as purchasers. That eminent jurist, Harper, Ch., in delivering the opinion of the Court of Appeals in that case, used the following language: “There is no question but that, if there had been no more in the will than a gift to a son, ‘for and during the term of
In the case of Myers v. Anderson, 1 Strob. Eq., 344, testator gave to his son certain personal property for life, and after his death to his two daughters “during their natural lives,” and after the death of said daughters, “to be the absolute property of the issue of their bodies forever,” and it was held that the daughters took life estates only, with remainder to their issue as purchasers. Johnston, Ch., in delivering the opinion of the Court, uses this language: “All the authorities agree that if the limitation be to the heirs of
The next case relied on is McLure v. Young, 3 Rich. Eq., 559, which is a decision of the former Court of Errors. In that case the testator devised real property to his daughter, “for and during the term of her natural life, and at her death, I give, bequeath, and devise the same, absolutely and 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 directed.” The decree of Johnson, Ch., on Circuit was that the daughter took a fee conditional, but the Cofirt of Errors reversed that decree, holding that the daughter took a life
The next case relied on is McIntyre v. McIntyre, 16 S. C., 290. In that case, lands were devised to A for life, and after her death to be equally divided amongst testator’s children nominatim, to be held by them for life, and after their death, “to the issue of them and their heirs forever.” Held, that the children of A took life estates only, with remainder in fee to their issue as purchasers. That conclusion was based upon the authority of Myers v. Anderson, supra, and McLure v. Young, supra, and other cases therein cited, holding that where there'are any words in the limitation over indicating that the intention was to create a new stock of inheritance in the issue, such words would take the case out of the operation of the rule in Shelly’s case, and the issue would take as purchasers. In the case of McIntyre v. McIntyre, the words superadded to the limitation to the issue, to them and their heirs foreverf conclusively show an intention to create a new stock of inheritance; and hence, under the rule laid down in Myers v. Anderson, and folfowed in McLure v. Young, took the case out of the operation of the rule in Shelly’s case.
The case of Fields v. Watson, 23 S. C., 42, has also been
Under this view, it becomes unnecessary to consider the second question, as to what would be the nature of the remainder, whether vested or contingent; for if, as w.e have concluded, there is no remainder, the question, what would be its nature, if there was one, becomes a purely speculative question.
,The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the complaint dismissed.