Steele v. &dagger

• Decision Date: 30 November 1909
• Citation: 81 S.C. 464,66 S.E. 200
• Parties: STEELE et al. v. SMITH et al.&dagger
• Court: South Carolina Supreme Court

(81 S.C. 464)

66 S.E. 200

STEELE et al.

v.SMITH et al.†

Supreme Court of South Carolina.

Nov. 30, 1909.

Appeal from Common Pleas Circuit Court of York County; Geo. W. Gage, Judge.

Action by Susan A. Steele and others against Alice Smith and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

Spencers & Dunlap and Wilson & Wilson, for appellants.

Finley & Jennings, for respondents.

JONES, C. J. This appeal involves the construction of the deed executed November 16, 1860, in the presence of three witnesses by John Steele, Sr., to Joseph A. Steele, as trustee, conveying a tract of 494 acres in York county. The deed recites that it is in consideration of love and affection for his sons and grandson named, and conveys to Joseph A. Steele, his heirs and assigns forever, with covenants of warranty, the land in question: "In trust as to the one-half of said piece, parcel or tract of land, to stand seized and possessed of the same, for the use and benefit of my grandson, the above-mentioned John G. Steele, for and during the term of his natural life; and at his death to transfer and convey the same to such person or persons, as he, the said John G. Steele, may by his will direct, or in fault of such will and direction, to the heirs of him and the said John G. Steele, in fee: Provided, however, and the estate above mentioned is hereby given and conveyed, upon the express condition and understanding, that I am to have and continue in the use and enjoyment of said premises during my natural life; and upon the further condition that the said Joseph A. Steele and John G. Steele, each contributing equally, pay or cause to be paid to my son, James B. Steele, above mentioned, within a reasonable time after my death, the sum of $1,666.66 2/3, with interest thereon from the date of my death." It appears that the grantor, John Steele, Sr., died soon after the execution of the deed, and the grantee, Joseph A. Steele, trustee, died within a few years thereafter.

John G. Steele, the grandson of the grantor, married the plaintiff Susan A. Steele January 4, 1866, and their first born child, plaintiff John Atkinson Steele, was born December 17, 1866, and the remaining plaintiffs are children of John G. and Susan A. Steele subsequently born. On August 3, 1868, John G. Steele conveyed to R. Paterson & Co. lands embracing the land in controversy, and defendants are in possession claiming title by successive conveyances under John Q. Steele. John G. Steele died intestate in 1905.

Plaintiffs claim that John G. Steele had only a life estate, and, having died without executing the power of appointment by will, they are entitled to partition of the land (now in the exclusive possession of defendants) as heirs of John G. Steele and remaindermen under the deed of John Steele, Sr. The circuit court sustained this contention. The defendants—appellants contend that under the rule in Shelley's Case John G. Steele had a fee-simple estate in the land which they acquired. The instrument is not a covenant to stand seised to uses, as contended by respondent, as the fee in prsesenti is conveyed to grantee charged with the usufruct for life in favor of the grantor. Cribb v. Rogers, 12 5. C. 564, 32 Am. Rep. 511; Ellen v. Ellen, 16 S. C. 142. It is in form and substance an ordinary deed conveying real estate in trust, and must be construed as such. Preston's statement of the rule in Shelley's Case as quoted in Porter v. Doby, 2 Rich. Eq. 52, is: "When a person takes an estate of freehold legally or equitably under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder either with or without the interposition of another estate of an interest of the same legal or equitable quality to his heirs or heirs of his body, or a class of persons to take in succession from generation to generation, the limitation to the heirs entitled the ancestor to the whole estate." The case of Porter v. Doby, supra, shows that executory trusts are exempt from the operation of the rule in Shelley's Case, and that the tests of an executory trust is whether the trustee has some duty to perform for the performance of which it is necessary that the title be regarded as abiding in him. It is unnecessary to refer to the cases on the subject. A number of them are mentioned in Reynolds v. Reynolds, 61 8. C. 250, 39 S. E. 391.

Appellants concede that the rule does not apply to trusts which are strictly executory, as where the trust is imperfectly or defectively declared, or where same discretion is left with the trustee, but does not apply where the trust is perfect and finally declared, and no room is left for the exercise of discretion by the trustee. The argument to this point is keen and forceful, and there is some high authority for the view. But we think it is clear that the trust in this case is such an executory trust as will prevent the application of the rule in Shelley's Case. In order to convey the fee to the appointee of the life tenant, it was essential to the performance of this duty that the trustee retain the title in fee until it was ascertained that there was default of such appointment at the termination of the life estate. The trust was not a perfect trust, as it involved for its full execution the exercise or failure to exercise a discretionary power of appointment by the life tenant. True, the discretion was not directly left to the trustee...