Crawford v. Masters , 98 S.C. 458 ( 1914 )

August 27, 1914. The opinion of the Court was delivered by In 1889, H.K. Crawford conveyed a tract of land to his daughter, Lula P. Crawford, habendum "unto the said Miss Lula J. Crawford and to her bodily heirs and assigns forever and to no others." In 1906, the legislature enacted (Civil Code 1912, sec. 3562) that "any illegitimate child or children, whose mother shall die intestate, possessed of any real or personal property, shall be, so far as said property is concerned, an heir or heirs at law as to such property, notwithstanding any law or usage to the contrary." In 1899. Lula P. Crawford gave birth to an illegitimate child. Lucile Crawford, who is still living. In 1914, plaintiff contracted with defendant to sell him the land and make him good title thereto in fee simple. Defendant refused to accept her title and comply with his contract, on the ground that she could not make a good title, and this action was brought to determine whether, under the statute above quoted, the birth of an illegitimate child enabled her to make a fee simple title to the land.

Plaintiff's title is a fee conditional. At common law, the tenant in fee conditional may, on the birth of lawful issue, convey the land in fee simple. Jones v. Postell, 16 S.C.L. (Harp. L.) 92; Wright v. Herron, 26 S.C. Eq. (5 Rich. Eq.) 441; Burnett v. Burnett, 17 S.C. 545; Archer v. Ellison,28 S.C. 238, 5 S.E. 517; Miller v. Graham, 47 S.C. 294,25 S.E. 165; Timber Co. v. Holden, 90 S.C. 474, 73 S.E. 470; Holley v. Still, 91 S.C. 487, 74 S.E. 1065. If the statute makes plaintiff's child her heir, so that the child would take the land under the deed on the death of her mother, the condition of the deed has been performed, and plaintiff can make a fee simple title to the land. By its terms, the statute makes an illegitimate whose mother shall die intestate, possessed of any property, an heir at law as to such property. As to this property, the mother is bound to die intestate, for it is not subject to devise. Jones v. Postell, 16 S.C.L. (Harp. L.) 92; Wright v. Herron, 26 S.C. Eq. (5 Rich. Eq.) 441. Therefore, if plaintiff should die now, Lucile would take as her heir under the statute. That being so, the title tendered to defendant is good.

The statute was intended to ameliorate the rigorous policy of the common law with respect to the rights of bastards, which, in modern times, has been thought to visit the sins of the fathers too harshly upon their innocent offspring. It is therefore remedial in its nature, and should be construed liberally.

There is no force in the contention that this construction makes the statute retroactive. Nor is it obnoxious to any settled principle of law, in that it gives an effect to the deed of H.K. Crawford, different from that which it would have had, if the statute had not been enacted. While it is true that the laws existing at the time and place of making contracts enter into and form part of them, so that it will be presumed that the parties contracted with reference to them, it is also true that contracts are made in contemplation of the fact that the policy of the State relative to any matter is subject to change, and that parties to contracts have no vested right in an existing policy.

The principle is illustrated and the point decided in the case of Deas v. Horry, 11 S.C. Eq. (2 Hill Ch.) 244. There a fee conditional was created by devise prior to the act abolishing the right of primogeniture. A reverter occurred, for failure of issue, after the passage of the act. It was, nevertheless, held that the reversion went, not to the eldest son of testator, as would have been the case under the law existing at the date of the creation of the estate, but to his heirs general, according to the law as it existed at date of the reverter. The Court said: "It was argued that on the death of Elias Horry, the right of reverter descended on his son, Elias Lynch Horry, and it seemed to be thought that this right could not be divested by the act of legislature. But why not? It belongs to the legislature to direct the course of descent, and declare who shall be heir. It is true that the right of reverter descended on Elias Lynch Horry in this sense, that if the fee conditional had determined at any time after the death of his father, and before the act of 1791, he would have been the person then entitled to the benefit of it. But that right he could not have transmitted to his heirs, if the act of 1791 had never been passed. Such a right, according to the views before expressed, is not regarded as property, it is a mere possibility, analogous in some degree to an heir apparent's right of succession."

In McGunningle v. McKee, 77 Penn. St. 81, 18 Am. Rep. 428, the Court gave a statute legitimating a bastard the same construction and effect that has been given the statute in this case. Testator gave lands to "my son T. and his heirs, provided that, if my son T. should die without an heir," then the lands were to be divided between another son and his children. After testator's death, an illegitimate daughter of T. was, by act of the legislature, made his lawful heir. T. died leaving no other child. Held, that the legitimated bastard took under the will as heir of T. The Court said: "It is urged, however, that this is not the kind of child or heir that James McKee had in his mind at the time he executed his will. That he intended one born in lawful wedlock. We answer, he did not so declare in his will. He used the technical word `heir.' He did not attempt to indicate what facts in his opinion constituted an heir. He made his will under the law, and left it to the law to determine whether Thomas died without an heir. He must be presumed to have known the legislative power to declare who should be an heir. He, therefore, intended to subject the property devised to legislative discretion to enact, within constitutional limits, whether Thomas had issue capable of inheriting. The law of every country regulates the succession of estates on the death of its citizens."

Judgment affirmed.