McFadden v. McFadden , 107 S.C. 101 ( 1917 )

March 29, 1917. The opinion of the Court was delivered by This is an action for specific performance, and the appeal involves the construction of a will. The facts are fully stated in the decree of his Honor, the Circuit Judge. The vital question in the case is whether the rights of the "heirs" are to be determined with reference to the time of the testator's death, or the death of his respective children leaving no issue.

The well-recognized rule is that when there is a devise to "heirs" as a class, they take at the death of the testator, unless a different time is fixed by the word "surviving," or some other equivalent expression. The construction of the word "heirs," when used alone, and likewise when preceded by the word "surviving," is fully discussed in Evans v. Godbold, 6 Rich. Eq. 26. In that case the Court held that where there is a devise upon the contingency of survivorship, and a precedent life estate is interposed, upon the determination of which the survivors are to take, the period of survivorship is referred to the termination of the life estate, and not to the death of the testator. It, however, clearly appears that such would not have been the conclusion but for the word "surviving," as shown by the following language:

"It is properly suggested in the Circuit decree that the term `surviving' in application to the heirs of testator would be unmeaning if referred to heirs at testator's death. In that case, `heirs,' standing by itself, would have precisely the same meaning as `surviving heirs.' But it is not true that `surviving heirs' is a mere pleonasm, when referred to survivorship at the death of the tenant for life. Without the use of it the heirs of testator at his death would have taken a vested interest, transmissible to their representatives, and widowers and widows of the children, not heirs of the testator, would have taken shares. Leeming v. Sherratt, 24 Eng. C.R. 14; Bankhead v. Carlisle, 10 S.C. Eq. (1 Hill Eq.) 358. Heirs of the same person may be very different individuals at different epochs. In Buist v. Dawes, 23 S.C. Eq. (4 Strob. Eq.) 38; Id. 26 S.C. Eq. (4 Rich. Eq.) 415, in note, where, after precedent particular estates, the estate, real and personal, was given contingently to J.S. in fee, who died during the subsistence of the particular estates, it was held that those persons who were the heirs and distributees of J.S. at the time of his death, and not different individuals who were his heirs at the falling in of the estate for enjoyment, were entitled to his estate by descent and succession. Hicks v. Pegues, 26 S.C. Eq. (4 Rich Eq.) 413. The converse is a corollary from this doctrine; and if his heirs at the termination of the particular estate be designated by a testator as purchasers of the remainder, they take in exclusion of heirs at his death."

These principles are fully sustained by the following authorities: Rountree v. Rountree, 26 S.C. 450,2 S.E. 474; DuRant v. Nash, 30 S.C. 184, 9 S.E. 19; Simpson v. Cherry, 34 S.C. 68, 12 S.E. 886; Selman v. Robertson,46 S.C. 262, 24 S.E. 187; Barber v. Crawford, 85 S.C. 54,67 S.E. 7; Ballard v. Connors, 31 S.C. Eq. (10 Rich. Eq.) 389; Seabrook v. Seabrook, 31 S.C. Eq. (10 Rich. Eq.) 495; Schoppert v. Gilliam, 27 S.C. Eq. (6 Rich. Eq.) 83.

In the case now under consideration the word "heirs" is not qualified by the word "surviving," or any other equivalent expression. Therefore the death of the testator, and not that of the life tenant, is the period to which we must look for the purpose of determining who are to take.

Mrs. Butler DuBose cannot take, however, for the very good reason that the testator so willed. Nor can her daughters take because they were not "heirs" of the testator at the time of his death. There is a difference between "heirs" and lineal descendants. Rembert v. Vetoe, 89 S.C. 198,71 S.E. 959.

Judgment reversed.