Williams v. Kibler

10 S.C. 414 | S.C. | 1879

The opinion of the Court was delivered by

Haskell, A. J.

A statement of the facts and a copy of the will are contained in the brief; and it is admitted that the testator’s wife died before the republieation of the will. This Court is called upon to construe the will to determine what estate each of the three grandsons took in the real estate devised “ to him during his natural life and then to his children forever,” and what, on the death of any of them childless, passed to the survivors or survivor, and what final disposition, if any, was made of the property in the event of all three grandsons dying childless. The comparatively recent cases, Reader vs. Spearman, (6 Rich. Eq., 89,) McCorkle vs. Black, (7 Rich. Eq., 407,) and Gillam vs. Caldwell, (11 Rich. Eq., 73,) seem to be in point.

The devise in Reader vs. Spearman was to A “ and to his children after his death; ” and in the event of A’s “ dying without issue,”, then and in that case to “revert to my estate and be divided among my surviving children or their issue.” It was held that A took only a life estate, with remainder to his children.

In McCorkle vs. Black the devise was to several persons, “to them during their lives, and after their death to their lawful issue,” with a limitation over that “should any one or more” of the devisees “ above mentioned die leaving no lawful issue, in that case it is my will that the portion or portions of him or her so dying shall be equally divided between the surviving brothers and sisters.” The question was, as in Reader vs. Spearman, “ whether as to the real estate the said devisees take an estate in fee or fee conditional, or whether the issue take as purchasers by way of remainder after the termination of a life estate in the first takers.” It was held that although the direct devise would, by the force of its words considered alone, import a fee conditional, nevertheless the fee conditional was, by force of the context, cut down into a life estate to the first taker with a remainder to the issue as purchasers.

To thus cut down the fee to a life estate, it was necessary to construe “issue” to mean “issue living at the death of the first taker,” and it was considered that such effect was produced by the limitation over being to tbe other devisees “ as survivors.” Gillam vs. Caldwell merely affirms the authority of MeCorlcle vs. Blaek. The difference between the present case and that of McCorkle vs. Black is to the extent that the word “ children ” differs in its technical sense from the word “issue.” The former is primarily “a word of purchase and not of limitation,” while the latter, “ issue,” is nomen oolleetivum — “ not less extensive in its import than heirs of the body; it embraces the whole line of lineal descendants. * * * It will be seen, however, that in some instances the word issue has been diverted from its general legal acceptation by the occurrence of words of distribution or other expressions which point at a mode of devolution or enjoyment inconsistent with an estate tail and have been decided to be insufficient to convert the term heirs of the body into children or to prevent its conferring an estate tail.”— 2 Jar., *331.

The limitation over to “survivors,” while it diverts, the term “issue” from its general acceptation into “children,” only strengthens and confirms the primary legal meaning of “ children ” to take as purchasers under the direct devise as in this case.

It is immaterial whether the word “then,” which occurs in the direct devise “ to him during his natural life and then to his children forever,” be interpreted “ at his death” or “after his death.” In the cases above cited the word is “after,” and it was not even attempted to show that this made “ the devise to A and his issue in one unbroken limitation” rather than “ a devise to A for life and after his death to his issue,” while in Markly vs. Singletary (11 Rich. Eq., 393,) the learned Chancellor thought it worth while to observe the “ peculiarly definite form of expression ‘ at her death ’ ” as indicating the intention to use the word “issue” [in a deed] as “ designatio personarum.” It is argued, however, that the expression “ children capable of inheriting their or either of their shares,” as used in the limitation over, is equivalent to “issue” and qualifies the word “children” in the direct devise. By the authorities already cited, that would not change the conclusion, for “ issue ” would be construed to mean “children.” But the proposition cannot stand. “Child capable of inheriting” is neither more nor less than a “ legitimate descendant of the first generation of the person named. * .* * Remoter descendants are sometimes permitted to take under an enlarged sense of the term ‘children’ in support of the intention of the testator. * * * Such liberal construction of the term ‘children’ is never made except for the benefit of the issue of children or from the force of the context.” — Matthis vs. Hammond, 6 Rich. Eq., 399. The right to inherit is the right to a distributive share under the statute. To that each legitimate child is entitled, and “ capable of inheriting ” can be taken in no other sense. The expression is a mere description of children as named in the direct devise, and as connected with the specified portion of the property “ as above recited,” which was intended to go to the children of each of the three grandsons.

The conclusion is that each grandson took a life estate in the land devised to him with remainder to his children. It may, perhaps, be proper to remark that the same conclusion would apply to the negroes specifically bequeathed.

The last clause in the will contains the further provision that in the event that either of the “said grandsons should die without leaving a child or children capable of inheriting the share of my property I have given to him as above recited, then and in that case it is my will that the share so given to him shall go to and be divided between the survivors ; or if two of them should die without either of them leaving children capable of inheriting their or either of their shares, then it shall belong to the survivor during his life, and then to his children forever.” The portion thus limited over to the survivors or survivor is the “ share * * given to him as above recited,” which is the property specifically devised and bequeathed to each for life and described in the recital above; but it does not embrace the property included in the residuary clause, which is to the three grandsons absolutely, to be equally divided between them. The estate of each in the share thus specifically described is for life. On the death of the first of the three brothers childless the estate which he had held for Jife passed to' the survivors for life. That it goes to the two for life, with remainder to their children, is not said in so many words, but such was clearly the intention; and cross remainders must be implied, for it is expressly declared that should two of them so die the whole should go to the survivor for life, and then to his children forever. Two did die childless, and all the property embraced in the three shares specifically given was in the survivor for life, and he, in the course of time, died likewise childless. Thus the last specific devise failed, and the question is, whether the testator died intestate as to that portion of his property and it reverted to his estate to be distributed amongst those who were his heirs-at-law at the time of his death, or was it disposed of by him in any other portion of his will?

On this point the second proposition submitted on the part of the appellant seems to be sound, viz.: “ That the reversionary estate in the lands was caught up by, and disposed of in, the residuary clause, in which the testator gives and bequeaths ‘all of his other property, of every kind and description whatsoever, to’ his ‘said three grandsons, to be equally divided between them.’ ”

“ Property of every kind and description whatsoever ” includes real estate or any interest in real estate not otherwise disposed of by the will. “ It has long been established that a devise of testator’s estate includes not only the corpus of the property but the whole of the interest therein.” — 2 Jarm., *181, and cases cited; 1 Jarm., *665; Drayton vs. Rose,7 Rich. Eq., 328. And “the word ‘property ’ is equivalent to ‘ estate’ in its operation to pass the interest as well as the land.” — Ibid, *190. The rule with regard to the residuary disposition of interests in real estate to which the testator was entitled at the time of making the will is thus laid down by Mr. Jarman, (Vol. I, *588): “A residuary disposition of real estate will carry all the contingent or reversionary interests which a specific devise may leave undisposed of.” — Hopkins vs. Mazyck, Rich. Eq. Ca., 263.

And “if the specific devise comprise only a partial or contingent interest in the lands, leaving an ulterior or alternate interest undis-posed of, which would, in the absence of disposition, descend to the heir, such undisposed-of interest will, even in a will made before the year 1838, (Act of Victoria,) pass by a general residuary devise.”

As “ if a testator devised real estate to A for life, remainder to A’s children living at his decease in fee, and the residue of the lands to B, it is clear that if A died either in the testator’s lifetime or after his decease, without leaving a child surviving him, B would be entitled under the residuary devise.” — Ibid, *591-2.

Thus in the case before us, the devises being to A, B and C for life, with cross remainders, — remainder in fee to their children or the children of the survivor, — and there being no ulterior or alternative disposition of the fee, and all the devisees for life having died without any of them having had a child, the fee was undisposed of by the specific devises, and passed, under the residuary clause, to the three grandsons, {Hopkins vs. Mazyck, Rich. Eq. Ca., 263,) unless there be qualifying words which limit the meaning of the residuary clause to other things. The will was drawn originally with the intention of giving to testator’s wife the enjoyment for life of all his worldly possessions, encumbered with a legacy of. one hundred dollars to a granddaughter, to be paid to her upon her marrying or attaining the age of twenty-one years. He then proceeds to carve out of the land and negroes an estate for each grandson during his life, and after his death to his children ; but these devises and bequests do not embrace all the property which he had previously given to his wife for life, i. e., “stock of cattle, horses, hogs, sheep, wagons, carts, plantation tools, and all my other property of any and every description whatsoever, also any money I may have by me at my death.”

The residuary clause manifestly was meant to embrace that property, and it was given to the three grandsons absolutely, “to be equally divided between them at my death, or, if my wife should survive me, at her decease.”

If the wife had survived the testator, it might have been argued with some force that the provision that the residuary estate should go not until the decease of the wife would imply that it included only such property as she was to enjoy during her life. It is clear that she could not have held a right to the reversion in fee, and the estate to her was limited strictly for life. But the wife died during the lifetime of the testator, and after her death he republished his will. The will must, therefore, be read as if all that portion which provides for the wife or refers to such provision were erased, unless it should be found necessary to refer to such portion to expound some ambiguous part of the instrument. No such necessity exists, and the will is composed solely of the legacy to the granddaughter, the specific devises and bequests to the grandsons, with remainder to their children, and a residuary clause giving absolutely to the three grandsons “all” his “other property of every kind and description whatsoever,” “to be equally divided between” them at his death. This, beyond question by all the authorities, includes the rever-sionary interest in the lands. And this conclusion is manifestly in harmony with the intention of the testator. After the death of his wife he had but one object before his mind — the welfare of his three grandsons. They were “the objects of his bounty in the first instance; * * in the second instance, their issue. But for the expectation of such issue he would in the first instance have given the fee” to his grandsons. — Hopkins vs. Mazyck, 275.

In fact, in this respect it is needless to draw any distinction between this case and that of Hopkins vs. Mazych, in which the Court says: “ When stripped of the confusion of the different clauses devising to the'sons respectively for life, and to their children after their deaths, the effect of the whole will taken together is that the sons * *• take a joint estate in fee in the land, to be defeated by all or either leaving issue living at their or his death, when the estate in fee would be severed, the issue taking in fee the particular lands devised to their respective fathers for life.”

The grandsons, William G., Isaac N. and Andrew J. Stewart, took a life estate in the tracts described in the will and specifically devised, “ and also took a fee in the lands, liable to be divested only by the contingencies of their having issue alive at their own deaths.” The contingencies having failed, the fee remained in them; and on the death of the last grandson, which rendered the contingency impossible, the land became distributable amongst those who were the heirs-at-law of the respective grandsons at the time of the death of each of them respectively, (or their devisees, in the event of their having disposed of it by will). In case • they died intestate the surviving brothers would be distributees, together with their sister and mother, who is stated to have survived one or more of the three grandsons of the testator.

The judgment of the Circuit Judge is reversed and the cause remanded, that such further proceedings may be had as shall be found necessary to adjustment in pursuance of the views herein expressed.

Motion granted.

Willard, C. J., and Maluer, A. J., concurred.