Black v. Todd , 121 S.C. 243 ( 1922 )

October 4, 1922. The opinion of the Court was delivered by The question raised by the appeal turns upon the construction of the will of Mrs. Jane Pressley, who died in 1875. The provisions of the will involved are as follows:

"Item 2. I give, devise and bequeath unto my executors * * * my house and lot * * * for the sole and separate use of my beloved daughter, Corrinna Mystis Harris, for and during the term of her natural life; * * * and from and immediately after her decease, I give and devise the same unto the children of my daughter, Corrinna M. Harris, if she should die leaving any, the child or children of any deceased child of my said daughter, Corrinna M. Harris, taking the share his, her or their parent would take if living, but in case my said daughter, Mrs. Harris, dies without leaving any child or children, or child or children of any deceased child surviving her, then I give and bequeath the said house and lot * * * to my granddaughter Mary Brown," etc.

Item 4. All the property that I have hereinbefore willed and bequeathed to my said granddaughter, Mary Brown, I give to my executors for her sole and separate use, during the term of her natural life, and at her death to her children, if any, or to any child or children of any deceased child of the said Mary Brown, and if she dies without any heirs of her body, I give the same to my grandson, Samuel P. Black," etc.

The Mrs. Corrinna Mystis Harris (Gibbon) named as the first life tenant of the property in controversy died in October, 1920, without ever having had children. In the meantime the granddaughter, Mary Brown, named as the second life tenant, then Mrs. Mary Brown Traynham, died intestate in 1900, leaving surviving her two sons, Ryland and Gibbon Traynham. Gibbon Traynham died intestate in 1917, leaving as his only heir-at-law his brother, Ryland, who died in August, 1920, leaving a will by which he devised the house and lot in controversy to the defendants in this action. The plaintiff is the Samuel P. Black named in the item 4 above quoted, and claims under the terms of said item 4, or, failing in that, as the only heir-at-law of his grandmother, Jane Pressley. From a decree of Hon. Edward McIver, Circuit Judge, adjudging that the plaintiff was not entitled to recover possession of this real estate and that the title thereto was in the defendants, the plaintiff appeals.

The Circuit decree should be incorporated in the report of the case.

It is apparent that in no view of the case is the plaintiff-appellant entitled to recover if the Traynham sons of Mary Brown (Traynham), the second life tenant, took descendible and transmissible interest under the will of Mrs. Jane Pressley. Appellant concedes that and undertakes to demonstrate that the Traynhams were contingent remaindermen who never acquired such an estate or title as could be transmitted. The well-established doctrine, recognized and applied in a long line of decisions in this jurisdiction, that a contingent remainder is transmissible where the contingency depends upon the event and not upon the person, is not disputed. The contention is that since it was impossible to tell who would take in remainder until the death of Mrs. Harris (Gibbon), the first life tenant, the contingency was in the person or persons who were to take; that the description of the person to take could not be confined to or among any ascertainable person or persons during the life of Mrs. Harris; and that consequently the interest in remainder was not in anybody during that period, nor would it be transmissible or descendible from any one dying before it became vested by the death of Mrs. Harris.

The fallacy of that contention, we think, lies in the failure to recognize and give due effect to the alternative character of the contingent interests limited by the will. The first and preferred limitation over after the death of Mrs. Harris is to her children, or the children of any deceased child, "surviving her." The second distinct and alternative limitation over after the death of Mrs. Harris is to Mary Brown (Traynham) for life and at her death to her children, etc. And the third alternative limitation over is to Samuel P. Black, "if she (Mary Brown Traynham) dies without any heirs of her body." It may be conceded that the contingent remainders limited to the children and grandchildren of Mrs. Harris surviving her, would not have been transmissible if such children and grandchildren had come into existence.Dickson v. Dickson, 23 S.C. 225; Roundtree v.Roundtree, 26 S.C. 472; 2 S.E., 474. But whether the alternative contingent interests limited over to Mary Brown (Traynham's) children were transmissible is a question the answer to which is in no wise dependent upon the transmissibility of any other contingent interests. The provisions of a will with respect to one contingency cannot affect provisions a testator has made for another and wholly different contingency. Robert v. Ellis, 59 S.C. 154; 37 S.E., 250. Neither the life estate limited over to Mary Brown Traynham nor the remainder to her children was conditioned upon Mary Brown Traynham or any of her children or grandchildren being in existence at the time of the happening of the event upon which this alternative remainder was to take effect, viz., the death of Mrs. Harris (Gibbon) without leaving child or grandchild. The death of Mary Brown Traynham before the falling in of the life estate of Mrs. Harris (Gibbon) leaving her two sons, Gibbon and Ryland Traynham, surviving her (Key v. Weathersbee,43 S.C. 424; 21 S.E., 324; 49 Am. St. Rep., 846;Witherspoon v. Watts, 18 S.C. 411), eliminated any possible uncertainty as to the personnel of the remaindermen designated to take the alternative upon failure of the first limitation over to the children and grandchildren of Mrs. Harris. At the time of the death of the Traynhams, Gibbon and Ryland, they were definitely ascertained persons to take in remainder, and the only uncertainty was as to the event upon which their alternative remainder was to take effect — the death of Mrs. Harris (Gibbon) without leaving child or grandchildren. We are clearly of the opinion that the contingent remainders limited over to Gibbon Traynham and Ryland Traynham were at the time of their deaths descendible and transmissible. Bank v. Garlington,54 S.C. 413; 32 S.E., 513; DuBose v. Kell, 105 S.C. 89;89 S.E., 555.

The decree of the Circuit Judge is approved, and the judgment of the Circuit Court is affirmed.

CHIEF JUSTICE GARY and MR. JUSTICE FRASER, concur.

MR. JUSTICE COTHRAN: I concur in this opinion, and particularly on this ground: Although the interests of the Traynhams' sons were contingent and non-transmissible as long as both Mrs. Harris and Mrs. Traynham were alive, when they survived their mother, who died in the lifetime of Mrs. Harris, there was no longer any uncertainty as to the person who were to take upon the death of Mrs. Harris without children, and consequently at that time (the death of their mother) their interests became transmissible although still contingent upon the death of Mrs. Harris without children.