Murchison Nat. Bank v. McInnis , 153 S.C. 382 ( 1929 )


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  • This case involves a construction of the will of T.N. Edens, deceased.

    By it he devised the real estate, which is the subject of this controversy, to his daughter "Drusilla" upon terms that under the Statute, 3 Code, § 5343 (Civ. Code, 1922), would have vested in her a fee-simple estate. She, however, died during the lifetime of the testator, and in consequence he executed a codicil to his will, which provided:

    "That wherever my daughter Drusilla McGilvary's name appears on each and every line I wish it changed to the name of her daughter, Mary McGilvary, and that she, Mary McGilvary, shall receive and inherit all the property given and bequeathed to her mother, Drusilla, by her father, T.N. Edens, to have and to hold during her lifetime and should she die without issue in that event, all the property received *Page 387 by devise from her grandfather, T.N. Edens, shall go back and be the property of said T.N. Edens or his other children."

    It is impossible to link up the devise to Mary McGilvary (now Jackson) with the devise to Drusilla, so as to give Mary a fee-simple. Section 5343 provides:

    "No words of limitation shall be necessary to convey an estate in fee-simple by devise, but every gift of land by devise shall be considered as a gift in fee-simple, unless such a constructionbe inconsistent with the will of the testator, expressedor implied."

    The will expressly provides that Mary shall take only a lifeestate. It cannot be conceived that the testator intended her to have a fee-simple estate when he has thus expressly limited her interest. We have then an estate to Mary for life, with nodisposition of the fee upon the termination of the life estate, and necessarily the fee remained in the testator's heirs, subject, of course, to the life estate in Mary. It is not a case ofreversion, which cannot be except where the fee has once passed out of the testator or his heirs; there can be no return, except where there has been a departure.

    It is conceded in the argument for the respondent: "In terms, of course, it is a life estate to Mary McGilvary, but a remainder cannot be implied to her issue to take as purchasers"; and the following conclusive declaration of the Court in Lawrence v. Burnett, 109 S.C. 416, 96 S.E., 144, 146, is quoted: "In the granting clause, a life estate only is given to Simeon in express terms, coupled with a provision that, if he should die without a child, the land should revert. No disposition is made * * * if Simeon should die with a child, and there is no direct provision for the child, if any; and it is well settled that, in such a case, the child cannot take as a purchaser by implication." To the same effect are: Carr v. Jeannerett, 2 McCord, 66; Carr v. Porter, 1 McCord, Eq. 60; Manigaultv. Deas' Adm'rs, Bailey, Eq. 298; McLure v. Young, 3 Rich. Eq., 559; Addison v. Addison, 9 Rich. Eq., 58. *Page 388

    It will be observed that the will simply provides for a disposition of the fee upon the death of Mary "without issue" (which under the statute, Civ. Code, 1922, § 5323, means at the time of her death); it does not provide for it upon her death with issue, and under the authorities cited the issue of Mary do not take as purchasers or in any other form, under the will. It seems to me irresistible, therefore, that the fee, upon the death of the testator, vested in his heirs-at-law, subject to the life estate of Mary.

    The heirs of the testator at the time of his death were the widow, Sabra A. Edens, the granddaughter, Mary McGilvary, and the following daughters and son: Annie Hamer, Nellie Herring, Sebra Edens, Jr., Clara Godbold, and J.D. Edens. The widow inherited one-third, the granddaughter, Mary McGilvary, the interest which her mother, Drusilla, would have inherited, one-sixth of two-thirds, one-ninth, and the daughters and son each the same.

    The first to die thereafter was Nellie Herring, leaving as her heirs-at-law her husband, her mother, her niece, Mary, and the other four sisters and brother (no children); her interest, one-ninth, devolved upon her husband one-half, and the other half equally among the other heirs-at-law named; the husband died having devised his interest to his second wife, Clara.

    The next to die was Sabra Edens, Jr., leaving as her heirs-at-law her mother, her niece, Mary, and her three sisters and brother; her original interest of one-ninth, plus the interest inherited from her sister, Nellie Herring, devolved upon the heirs named.

    The next to die was Clara Godbold, leaving as her heirs-at-law her husband and one child, Duncan C. Godbold; her original interest of one-ninth, plus the interest inherited from her sister, Nellie Herring, plus the interest inherited from her sister, Sabra, Jr., devolved upon her husband, one-third, and her son, two-thirds; her husband has since died intestate, leaving his son, Duncan, as his sole heir-at-law. *Page 389

    The next to die was the widow, Sabra A. Edens, in October, 1910, leaving as her heirs-at-law her children, Annie Hamer (now Barrentine) and J.D. Edens, and her grandchildren, Mary McGilvary and Duncan C. Godbold, each of whom inherited a one-fourth interest in the several interest that had devolved upon Sara A. Edens, the widow.

    It thus appears that the only persons who could possibly take an interest in the property upon the death of the life tenant, Mary McGilvary, are Annie Hamer (Barrentine), J.D. Edens, Duncan C. Godbold, Clara F. Herring, and the heirs-at-law of Mary McGilvary, all of whom have conveyed and quit-claimed the land to the plaintiff, except the last named.

    It is a matter of no consequence in this case, whether Mary McGilvary took under the will a fee-simple title or a life estate, but in my opinion the ruling that she took a fee-simple title will create much confusion, should the question arise in some other case in which it would be extremely important. It is amatter of consequence whether or not the children of Mary McGilvary took as purchasers, which I have endeavored to show they did not.

    I do not agree to the proposition: "That part of the codicil which provides that, in the event of the death of Mary McGilvary without issue, the property devised to her `shall go back, and be the property of said T.N. Edens,' the testator, is a nullity, as a reversion is by operation of law, and not by deed or will."

    Such a provision has over and over again been sustained and construed by the Court in cases of wills. The case cited ofBoyce v. Moseley, 102 S.C. 361, 86 S.E., 771, I do not think sustains the proposition. The case involved the construction of a deed; it conveyed a life estate, with no provision for the passing of the fee; the fee necessarily remained in, not revertedto, the grantor. The deed provided that upon the termination of the life estate, the land should revert to the estate of the grantor. It could not do this, for it had never departed *Page 390 from the grantor. If the phrase meant that the fee remained in the grantor, the law provided for that, and a direction to that effect was necessarily meaningless.

    I think, for these reasons, that the result attained, that the plaintiff has the fee simple to the property, is sound.

    MR. JUSTICE CARTER concurs.

Document Info

Docket Number: 12780

Citation Numbers: 150 S.E. 895, 153 S.C. 382

Judges: MR. JUSTICE BLEASE.

Filed Date: 12/10/1929

Precedential Status: Precedential

Modified Date: 1/13/2023