248 F. 319 (W.D.S.C. 1918), Hickson v. Davenport

Citation:248 F. 319
Party Name:HICKSON et al. v. DAVENPORT et al.
Case Date:February 23, 1918
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 319

248 F. 319 (W.D.S.C. 1918)

HICKSON et al.



United States District Court, W.D. South Carolina.

February 23, 1918

McCullough, Martin & Blythe, of Greenville, S.C., for complainants.

Cothran, Dean & Cothran and Haynsworth & Haynsworth, all of Greenville, S.C., for defendants.

JOHNSON, District Judge.

This is a motion by the defendants to dismiss the bill for want of equity. The rights of the parties depend

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upon the construction of a deed. In 1844 Tully Bolling conveyed the land described in the bill "to my said daughter, Martha Ann Bolling, during her natural life and after her death to the issue of her body." The habendum clause is:

"Unto the said Martha Ann Bolling, and then to the issue of her body, them, their heirs and assigns, forever; but if any child of Martha Ann should die before she does, leaving issue, then the child or children to take the share its father or mother would of been entitled to if alive; but if Martha Ann should die without leaving issue living at her death, then this tract of land is to revert back to my estate and be disposed of as directed in my will."

Martha Ann subsequently intermarried with William Hickson. In 1875, after issue born, she conveyed the land to Francis M. Davenport, under whom defendants claim. In 1897 William Hickson died, and in 1915 Martha Ann died. The complainants are her children. If Martha Ann took a fee conditional under the deed of 1844, her conveyance in 1875 was effectual to carry the fee to Francis M. Davenport, and defendants' motion to dismiss the bill should be granted; but if she took a life estate only, the complainants are entitled to relief.

The decision of this motion has been delayed, as the court desired to examine practically all of the decisions of the highest courts of the state construing common-law deeds, trust deeds, and wills, with particular reference to the limitation of estates. It is essential, if possible, to harmonize the decisions and to conform to them, in order that there may be uniform rules of property, and so that both the state and federal courts may administer justice by the same standard. There have been many cases, and much confusion arises from loose expressions about the leniency of the courts in construing wills and brushing aside all forms in order to carry out trusts.

In this state the statute on wills provides that:

"No words of limitation shall be necessary to convey an estate in fee simple, but every gift of land by devise shall be considered a gift in fee simple unless such meaning is against the manifest intention of the testator," etc.

Of course, under this statute, words in a will would carry a fee simple, when the same words in a deed would carry no more than a life estate. It is also true that the same words may have a technical meaning in a will which they do not have in a deed. Nevertheless, the purpose of the courts in construing a will, a deed, or any other written instrument is to ascertain the intention of the maker, and to give effect to such intention if it can be done without violating established principles of law. Thus, when it is found that technical words are used in their technical sense in a will, the courts are bound to give effect to such words, just as they would if the same words were found in a deed. The rule in Shelley's Case, when applicable, applies alike to a will or a deed.

The words used in the conveying clause of the deed we are called upon to construe are "issue of the body." If "issue" is used as a synonym of "heirs," the conveying clause would create a fee conditional in Martha Ann, and the rule in Shelley's Case would apply; but if the word "issue" was used in the sense of "children," the words in the conveying clause would carry to Martha Ann a life estate only, and

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the rule in Shelley's Case would not apply. It is clear, therefore, that the meaning of the word "issue" will determine the character of the estate conveyed to Martha Ann. Technical words are given their technical meaning, unless the context shows clearly that they were used in some other sense. The words "heirs," or "heirs of the body," have a clearly defined and well-understood technical meaning. The word "issue" in a deed is not an apt word with a well-defined meaning, like "heirs" or "heirs of the body." The Supreme Court of South Carolina says that, whenever the word "issue" is used in either a deed or a will, it must be used in one of three senses: (1) It may describe a class of persons who are to take as joint tenants with the parties named; (2) it may be descriptive of a class who are to take at a definite, fixed time as purchasers; (3) it may denote an indefinite succession of lineal descendants, who are to take by inheritance. At the common law there can be no doubt that the word "issue" was not considered an apt word in a deed. Blackstone, who has no peer in clearness and accuracy of statement, says:

"As the word 'heirs' is necessary to create a fee, so in farther limitation of the strictness of the feudal donation, the word 'body' or some other word of procreation is necessary to make it a fee tail and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance or words of procreation be omitted, albeit the words are inserted in the front, this will not make an estate tail. As, if the grant be to a man and the issue of his body, to a man and his seed, to a man and his children, or offspring--all these are only estates for life, there wanting the words of inheritance, 'his heirs.' "

In McMillan v. Hughes, 88 S.C. 298, 70 S.E. 804, the court quoted from McMichael v. McMichael, 51 S.C. 557, 29 S.E. 403, the following:

"The technical rule of the common law makes it essential to the creation of an estate in fee simple in a natural person by deed that there be in the deed an express limitation to such person and his 'heirs.' This rule is generally and inflexibly enforced in the United States, except where abrogated or modified by statute. While many states have altered this rule by statute, no such statute, as applicable to deeds, has been adopted in this state, and our courts have repeatedly and uniformly recognized and enforced the strict rule of the common law."

To support this the court cites Knotts v. Hydrick, 12 Rich. (S.C.) 318; Bratton v. Massey, 15 S.C. 284; Varn v. Varn, 32 S.C. 85, 10 S.E. 829; Jordan v. Neece, 36 S.C. 298, 15 S.E. 202, 31 Am.St.Rep. 869; Harrelson v. Sarvis, 39 S.C. 18, 17 S.E. 368; Bradford v. Griffin, 40 S.C. 468, 19 S.E. 76; Wilson v. Watkins, 48 S.C. 341, 26 S.E. 663.

Washburn, in his work on Real Property, in the fourth edition, at page 604, says:

" 'Issue' in a will is either a word of purchase or inheritance, as will best answer the intention of the devisor. In the case of a deed, it is always taken as a word of purchase."

Lord Chancellor Hardwicke says:

"The word 'issue' in a will would be a word of limitation, but in a deed is always a word of purchase."

248 F.--21

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In Markley v. Singletary, 11 Rich.Eq. (S.C.) 397, the court said:

"It must be observed that the instrument which created these estates is a deed, and the term used to describe those to whom the remainder is limited is 'issue.' The word 'issue' in a deed is designatio personae, always a word of purchase. An estate in fee conditional * * * could not be created * * * by the use of this word, even when clearly designed as a word of limitation as 'to A. and his issue.' "

In Bradford v. Griffin, 40 S.C. 470, 19 S.E. 77, the court says:

"All the authorities from Lord Coke to the present time lay down the rule that (with certain exceptions unnecessary to be here mentioned, as this case cannot be brought within any of them), in order to create a fee by deed, the word 'heirs' is necessary to be used. Coke's Littleton, § 1; 4 Kent, 5; 2 Bl.Com. Mr. Preston, in his treatise on Estates (volume 2, p. 1), says: 'To the creation or transfer of an estate in fee by deed it is requisite that the land should be limited, as to individuals, to the individual and his heirs.' "

The words in the deed in Bradford v. Griffin, supra, were to a son "for life and after his death to the issue of his body" forever. The words in the deed we are called upon to construe are "to Martha Ann for life and after her death to the issue of her body." Tiedeman on Real Property, 434, says:

"Limitation to the sons, children, or issue of him who takes the life estate, will not be converted by the rule into a fee in the first taker, unless they are created by will and from a consideration of the whole will it appears that these words were used in the sense of heirs."

The early decisions in South Carolina harmonize perfectly with the common-law rule, but in the case of Holman v. Wesner, 67 S.C. 307, 45 S.E. 206, the word "heirs" was not used in a deed. The grant was "to John Lewis Haigler during his life and after his death to the lawful begotten issues of his body, and should the...

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