48 S.E. 272 | S.C. | 1904
June 22, 1904. The opinion of the Court was delivered by This appeal raises the question whether those persons named in the deed of trust hereinafter mentioned took as vested or contingent remaindermen.
The facts are thus set out in the decree of his Honor, the Circuit Judge: "Mary A. Woodley, being the owner in fee of a certain tract of land, on the 2d day of December, 1897, made to Archibald L. Calhoun, sr., a formal deed of conveyance thereto with habendum to him, his heirs and assigns, `in trust, nevertheless, for my sole use, benefit and behoof, for and during the term of my natural life, without impeachment of or for any manner of waste, and to permit me to use, *286 occupy and possess said premises and said personal property so long as I may live, and to receive and enjoy the rents, profits, usufruct and income therefrom, without accounting or accountability to any one whomsoever, and upon and immediately after my death to convey said real estate and transfer and deliver said personal property unto Legare S. Calhoun, Margaret E. McLeod, J. Meekins Woodley, Flora Woodley, John A. Woodley, Jas. D. Woodley, Tot A. Woodley, Lydia J. Woodley, and the children of my deceased daughter, Mary Woodley Moore, in the proportion that each of my said children shall receive one share, and the children of my deceased daughter, Mary Woodley Moore, shall among them receive the one share to which their mother would have been entitled had she been living; and in case any of my said children or grand-children shall die before said conveyance is made, then the child or children of such deceased child shall receive the part or portion to which his or their parent would have been entitled, had he or she been living.'
"The said Mary A. Woodley died October 5, 1901, leaving her surviving as her only heirs at law all the beneficiaries named in said deed, except Tot A. Woodley, who died some time previous to the death of said Mary A. Woodley, his heirs at law being his widow and a posthumous child, who lived only a few months, and also died before the said Mary A. Woodley.
"Soon after the death of said Mary A. Woodley, John A. Woodley qualified as administrator of her estate, and on December 2, 1901, instituted this suit, making all of said heirs at law of Mary A. Woodley, and also the said Hattie Woodley, parties defendant. The action being for a sale of said land to pay her debts and for partition, the complaint alleging that said Hattie Woodley claimed. But was not entitled to participate in the same. On December 28th, 1901, an order was granted calling in creditors, and under the call several creditors proved claims. On November 1, 1902, an order of sale was granted and also of reference. *287 The sale was duly made, and report thereof confirmed by order, and distribution directed after providing for the payment of the debts of said Mary A. Woodley.
"The order of distribution provided, `that the clerk should retain the sum of five hundred and fifty-one and 81-100 dollars until the determination of the right thereto of the defendant, Hattie Woodley, nothing in this order being intended to prejudice that question one way or the other.'
"The defendant, Hattie Woodley, never answered in said cause, and never formally appeared, until about the time said order of distribution was about to be made.
"The order of reference above mentioned was revoked by order dated October 20th, 1903. So that the sole question left for adjudication is, shall the amount held by the clerk, to wit: the sum of five hundred and fifty-one and 80-100 dollars, be paid over to the defendant, Hattie Woodley, the wife of Tot A. Woodley, or shall the same be distributed among the surviving beneficiaries under said deed of trust and heirs at law of said Mary A. Woodley. The question depends upon the proper construction of the deed of Mary A. Woodley."
The Circuit Judge then states his reasons for holding that the remainders were contingent, as follows:
"The property mentioned in the deed was the property of Mary A. Woodley. She conveyed it to the trustee and his heirs and assigns in trust, to hold it for her use during her natural life, and after her death to convey it to the persons named in the deed. She must have had some object in conveying the fee to the trustee, as she could have conveyed to her children direct, reserving a life estate, without the interposition of a trustee. The only object she could have had was to prevent the vesting of the title to the property given to the beneficiaries until the term fixed by her in the deed, and for it to be conveyed to only those persons named in the deed.
"When not a violation of some rule of law, the intention of the maker of a deed must prevail, and this intention must *288
be ascertained from a consideration of the whole instrument.Duckett v. Butler,
"When the right to the estate is deferred, is not only deferred, but is dependent upon the happening of some future contingency, the remainder is contingent. Farr v.Gilreath,
"By the terms of this deed no one of the children or grand-children is to take except upon the contingency that he or she is living at the death of the grantor. Tot A. Woodley and his only child died before the grantor, and no interest in the property conveyed was vested in either of them, as the contingency of those surviving the grantor never happened. If the remainder was contingent, then the widow of Tot Woodley and the mother of his child has no interest under the deed in the property. The rule is well settled, that when a legacy is given to a class of persons in general terms, and one or more of the described class dies in the lifetime of the testator, those of the described class who survive the testator take the whole estate. Reynolds v.Reynolds,
"The grantor requires the trustee to convey the interest to each beneficiary under the deed. In order for him to do so and execute the trust, it was necessary that he should hold the legal title to the property until after the death of *289 the life tenant. The grantor fixed the time in the deed when the interests were to vest — that is, when the conveyances are made by the trustee, and the remainders could not be vested transmissible remainders, as contended by counsel representing the widow of Tot Woodley.
"It is adjudged and ordered, that the defendant, Hattie A. Woodley, is entitled to no interest in the property conveyed by Mary A. Woodley to A.L. Calhoun, sr., as trustee, and that the amount of money now in the hands of the clerk is distributable among the other beneficiaries mentioned in said deed" * * *
The first, second and fourth exceptions will be considered together, and are as follows:
"I. Because it is respectfully submitted that his Honor erred in holding that the remainder in said deed to Tot A. Woodley was not a vested remainder; whereas, he should have held that it is a vested remainder, liable to be diverted only upon his dying in the lifetime of the life tenant, leaving a child or children surviving, in which case the estate in remainder at once became vested in such child or children.
"II. That immediately upon the birth of the posthumous child of Tot A. Woodley and his wife, Hattie, the said estate in remainder vested in said child, and upon its death was transmitted to its mother, Hattie Woodley, as its sole heir at law, and his Honor should have so decreed.
"IV. Because it was error in the presiding Judge not to have held that the remainder to Tot A. Woodley is a vested remainder, liable only to become divested upon his death in the lifetime of the life tenant, and having so died, the estate became vested in his unborn child immediately upon its birth; and being so vested and transmissible was, upon the death of the said child in the lifetime of the life tenant, at once transmitted to its mother, as sole heir, who is now claiming, and to whom must be awarded the right to the said fund expressly reserved by the Court to await its judgment."
The distinction between vested and contingent remainders is clearly stated in the case of Faber v. Police,
In the case of Gourdin v. Deas,
There is an elaborate review of the authorities upon this subject in Brown v. McCall,
That case is conclusive of the questions presented by the foregoing exceptions, which are sustained.
The third exception is as follows: "III. Because it was error in his Honor to hold that the fee being in the trustee, prevented the estate in remainder from vesting, and that the *292 period for the vesting of the remainders under the deed is the death of the life tenant, and this only upon the contingency of the remaindermen surviving the life tenant; so that the estates in remainder under said deed are in fact contingent and not vested. Such instruction, it is respectfully submitted, was error."
As the interests were vested by the deed, there was no necessity for the trustee to make conveyances after the death of the life tenant. Farrow v. Farrow,
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for further proceedings to carry into effect the views herein announced.