HUGHES et al. d1, McMillan v. Hughes

• Citation: 70 S.E. 804,88 S.C. 296
• Parties: McMILLAN et al. v. HUGHES et al. d1
• Decision Date: 01 April 1911
• Court: United States State Supreme Court of South Carolina

70 S.E. 804

88 S.C. 296

McMILLAN et al. v. HUGHES et al. d1

Supreme Court of South Carolina

April 1, 1911

Appeal from Common Pleas Circuit Court of Bamberg County; G. W Gage, Judge.

Suit by Florrie McMillan and others against Clarence E. Hughes and others. Decree for complainants, and defendant Clarence E Hughes appeals. Affirmed.

E. H Henderson and S. G. Mayfield, for appellant. J. Aldrich Wyman and H. M. Graham, for respondents.

JONES C.J.

This is an action to partition a tract of land in Bamberg county containing 225 acres, known as the "Henrietta McMillan tract."

One of the main issues involved in this appeal is the construction of a deed of the premises executed by the appellant C. M. McMillan October 3, 1876. This deed, in consideration of love and affection and $42 paid by Henrietta McMillan, the grantor's wife, conveyed said land "unto the said Henrietta McMillan for the use, benefit and advantage of herself and the children she now has and those she may hereafter have by her present husband the said Charles McMillan (description of the land) this deed is meant to convey to said Henrietta McMillan and her children by said Charles McMillan *** to have and to hold said tract or parcel of land unto the said Henrietta McMillan and her children as aforesaid *** to her during her life and to her children by her present husband forever in fee simple."

The circuit court held that the children of Henrietta took the fee, construing the words "to them in fee simple forever" as equivalent to the words "to them and their heirs." C. M. McMillan contends that Henrietta and her children took a life estate only, and that the fee remains in the grantor.

The construction given by the circuit court clearly violates the rule of common law in force in this state. In McMichael v. McMichael, 51 S.C. 557, 29 S.E. 403, construing a deed substantially similar, the court said: "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. Knotts v. Hydrick, 12 Rich, 318; Bratton v. Massey, 15 S.C. 284; Varn v. Varn, 32 S.C. 85 ; Jordan v. Neece, 36 S.C. 298 [15 S.E. 202, 31 Am. St. Rep. 869]; Harrelson v. Sarvis, 39 S.C. 18 ; Bradford v. Griffin, 40 S.C. 468 ; Wilson v. Walkins, 48 S.C. 341 . An exception to this rule is recognized in this state in the case of trust deeds, where the purposes of the trust require that the trustee or cestui que trust shall take an estate of inheritance, in which case the word 'heirs' is not essential to create such an estate. A court of equity in its jurisdiction over trusts, not being bound by the technical rules of the common law, will seek the intention of the grantor from the whole instrument; and if it contains words other than 'heirs,' indicating an intention to convey a fee simple, may so declare the intent, in order to effectuate the trust. This distinction is clearly shown in Bratton v. Massey, 15 S.C. 284, and in Foster v. Glover, 46 S.C. 538, 24 S.E. 370. The case of Hunt v. Nolen, 46 S.C. 356 , upon which the circuit judge relied, related to the construction of a trust deed, and the circuit judge fell into the error of applying the exceptional construction permitted as to trust deeds, to the deed in question, which is not a trust deed. In Fuller v. Missroon, 35 S.C. 314 , cited to sustain the circuit decree, the deed construed was a trust deed."

A similar question was before the court in Sullivan v Moore, 84 S.C. 428, 65 S.E. 108, and this language was used: "The case of the plaintiff rests on the proposition that the deed, with the word 'heirs' so omitted, conveyed only a life estate to Mrs. Greer, and upon her death in November, 1906, there was a reversion to Mrs. Sullivan. This is the rule of the common law from which the courts cannot escape, though its operation nearly always results in the injustice of defeating the intention of the parties. The rule serves generally as a snare to those unlearned in technical law, and it would be difficult to suggest any reason for its continued existence. But it has been so long...