7 S.E.2d 724 | S.C. | 1940
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *100 March 18, 1940.
The opinion of the Court was delivered by Plaintiff brought this action for the purpose of having the Court construe a deed, dated November 12, 1917, from Mrs. L.A. Sims to Nathan Augustus Sims and Nancy Agnes Sims (now Agnes Sims Clayton), and also for the purpose of having partitioned in kind the real estate described in the deed and owned in common by the two grantees. The complaint alleges that Nathan A. Sims "owns a fee simple conditional title to his moiety of said property."
The plaintiff, Nathan A. Sims, and the defendant, Mrs. Nancy Sims Clayton, are twins, have passed their twenty-first birthday and both are now married. Nathan A. Sims has a minor child, Harriet Ann Sims but the other grantee, Mrs. Nancy Sims Clayton, has no child. Esten C. Taylor *101 was appointed guardian ad litem for Harriet Ann Sims and for the unborn issue of Nathan A. Sims: Hugh Clayton was appointed guardian ad litem for the unborn issue of Nancy Sims Clayton. Both guardians ad litem have filed answers and made personal appearances. L.P. Sims, Sr., and Mrs. Blanche Sims Harris, who were made parties defendant for the reason that they are the only heirs and distributes at law of Mrs. L.A. Sims, have answered.
The preamble to the deed is as follows: "Whereas, I have previously made provisions for certain of my grandchildren, and their descendants by conveying to them certain lots of property given me by my husband to the end that the property may remain in the Sims family, and among those bearing the name, in perpetuity so long as the law may permit."
The granting clause reads, in part: "* * * to be held and enjoyed by them, during the full term of their natural lives, and at the death of either without heirs of the body surviving them to the survivor of them, but upon the death of either or both with heirs of the body surviving, to the heirs of their body or bodies in fee simple forever." The consideration was love and affection and one dollar.
The habendum clause contains this provision: "To Have And To Hold * * * jointly share and share alike for the full term of their natural life or lives, and at the death of either without issue of the body the survivor to take the premises for his or her enjoyment during the term of his or her life, and at the death of the body of either leaving heirs, their heirs and assigns forever, subject to the use and enjoyment of the premises by the grantor, Mr. L.A. Sims, during the term of her natural life."
The matter was referred to the Master for Spartanburg County, who held two references. He reported that Nathan Sims and Nancy Sims Clayton have agreed upon a plan for a partition in kind of the property in question, and recommended that commissioners be appointed to execute this plan; that there is due in unpaid taxes in excess of $980.00 *102 on this real estate, and, in its present state, is incapable of yielding sufficient income to pay current taxes; that it has fallen into a hazardous state of disrepair and dangerous to its tenants, who will vacate it unless it is repaired; and that the grantees cannot agree upon a plan for improvement or of providing funds for repair. The Master found that "under the deed, Nathan Sims and Nancy Sims Clayton have fee conditional estates. Lawful issue having been born to Nathan, the reversion of his estate is therefore barred, and he can alienate his share of the property any time during his life. Upon birth of lawful issue to Nancy, she will then have the same right of alienation." By his decree dated August 29, 1939, Judge Sease confirmed the Master's report. The guardian ad litem for Harriet Ann Sims now appeals to this Court.
The appellant states that the "sole question involved on this appeal is whether the Circuit Court was in error in holding that the grantor in the deed construed herein used the words 'to the heirs of their body' occurring in the granting and habendum clauses, in their strict legal sense and not in the nontechnical sense of 'children' or 'grandchildren.'" contending that an examination of the entire deed shows clearly and unmistakably that the grantor did not intend to use the words "heirs of their body" in their established legal sense, which intention is manifested, first, by the declaration the grantor in the preamble "of her intention that the property conveyed 'may remain in the Sims family, and among those bearing the name in perpetuity so long as the law may permit,' and, secondly by the limitation in the granting clause 'to the heirs of their body or bodies in fee simple forever', and in the habendum 'at the death of the survivor to the heirs of the body or the heirs of the body of either leaving heirs, their heirs and assigns forever.'"
We find in Antley v. Antley,
To begin with, our careful reading and study of the preamble leads us to conclude that it has no bearing on, or does not explain in any way, the estate conveyed in the granting and habendum clauses. The preamble here shows on its face that the grantor is definitely referring to provisions previously made in other deeds for grandchildren other than the grantees in the present deed. In other words, it is clear that the grantor is merely saying that she had previously conveyed certain lots of property to certain of her grandchildren other than the grantees here, and that the expression "to the end that the property may remain in the Sims family, and among those bearing the name in perpetuity so long as the law permits," has reference to the property so previously conveyed in other deeds.
We come now to an examination of the granting and habendum clauses. In granting clause we find the superadded words "in fee simple forever." The case of Clark v. Neves,
"This being a deed instead of a will, and an executed trust instead of an executory trust, the construction must be governed by the strict rules of the common law. McMichael v.McMichael, 51 S.C. (555), 557, 29 S.E., 403. The apparent *104
intent can only be given such effect as accords with the established rules governing common-law conveyances. The words 'lineal heirs,' like 'heirs of the body,' mean all lineal descendants to the remotest posterity, and are words of inheritance, and not of purchase, unless the instrument clearly shows they were used in a restricted sense to denote 'children.' Duckett v. Butler,
"Under the rule in Shelley's case, if an estate of inheritance be given to the ancestor, and a remainder be thereon limited to his heirs, or to the heirs of his body, such remainder is immediately executed in possession in the ancestor, so that the ancestor takes the whole estate in fee simple if the limitation be to heirs general, and in fee conditional if the limitation be to heirs of the body. Austinv. Payne, 8 Rich. Eq. (9), 10; Williams v. Foster, 3 Hill, 193. When, therefore, the deed is construed according to the ordinary rules of construction, and it is ascertained that the words 'heirs' or 'heirs of the body' are used in their technical sense as describing an entire class or denomination of heirs, the rule in Shelley's case, as stated above, applies. In using the words 'lineal heirs', the grantor in this case evidently intended the limitation to be not only to children, but to grandchildren, great grandchildren, and so on down the line of descent indefinitely. There is nothing in the deed to restrict the meaning of 'lineal heirs' to children alone.
"The case of Danner v. Trescot, 5 Rich. Eq., 356, shows that a deed conveying land to A. for life, and after her death to her right heirs, their heirs and assigns forever, does not create 'right heirs' (the same as heirs general) into a new stock of inheritance, so as to prevent the operation of the *105
rule in Shelly's case. In Kennedy v. Colclough, 67 S.C. [118], 122,
The Court, in Clark v. Neves, supra, had under consideration the same superadded words as appear in the granting clause here. Under the holding there, and the cases cited and quoted from in that opinion, we must conclude that these superadded words fail to take the limitation out of the rule in Shelley's case, and that the granting clause carries a fee conditional to the first taker.
The case of Hewitt v. Hewitt,
We have read each of the cases relied upon by counsel for appellant but find that the facts of those cases differentiate them from the case at bar. In the deed under construction in the case of First Carolinas Joint Stock Land Bank v. Ford,
Under the rules of law governing, and from a careful consideration of the preamble and the granting and habendum clauses together, we are of opinion that the grantor disclosed no intention that the words "heirs of the body" *107 should have the meaning of "children." Appellant's second and third exceptions must, therefore, be overruled.
The first exception is as follows: "The Court erred in holding 'The burden of proof is upon him who alleges a meaning other than that imported by the legal signification of the words used' and in not holding that, this being an action for the construction of a written deed, the intention of the grantor is a matter of law to be ascertained by an examination and construction of the language contained within the four corners of the instrument, the error being that in so holding, the intention of the grantor is made to depend on testimony dehors the instrument, of a preponderant weight, on behalf of this appellant, that the grantor used the words `heirs of their body' in the sense of 'children' or 'a definite line of succession.'"
In Antley v. Antley, supra, we find: "Intention is a term of art, signifying the meaning of the writing.Sandford v. Sandford, 106 S.C. [304], 306,
The Master concluded as a matter of law that the words used by the grantor carried to the grantees named a fee-conditional estate. Appellant excepted to his holding, contending that the grantor intended the *108 words used to have the meaning of "children of a limited degree." We think that the Circuit Judge meant, by the expression complained of, that appellant, having challenged the Master's recommendation, must bring forward argument — reasoning expressed in words — in support of his contention, but that such argument must be based on the wording of the deed itself as a whole and not upon proof outside of that instrument. This exception cannot be sustained.
The circuit decree is affirmed.
MR. CHIEF JUSTICE BONHAM and MESSRS. JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.