Adams v. Verner

• Citation: 86 S.E. 211,102 S.C. 7
• Decision Date: 10 September 1915
• Docket Number: 9187.
• Parties: ADAMS ET AL. v. VERNER.
• Court: United States State Supreme Court of South Carolina

86 S.E. 211

102 S.C. 7

ADAMS ET AL. v. VERNER.

No. 9187.

Supreme Court of South Carolina

September 10, 1915

Appeal from Common Pleas Circuit Court of Oconee County; John S Wilson, Judge.

Action by Anna Adams and others against John D. Verner. From a judgment for plaintiffs, defendant appeals. Reversed.

R. T Jaynes, of Walhalla, and T. P. Cothran, of Greenville, for appellant.

Carey Shelor & Hughs, of Walhalla, and Bonham, Watkins & Allen, of Anderson, for respondents.

HYDRICK J.

Catherine Biemann devised the lands in dispute in these words:

"To my beloved daughter-in-law, Catherine H. Biemann, wife of H. D. A. Biemann, to her and the heirs of her body, by the said H. D. A. Biemann, absolutely in fee simple forever."

Plaintiffs are the children of Catherine H. by H. D. A. Biemann, who was the only child of testatrix. They claim, under the devise, as tenants in common with their mother. Two of them were born after the execution of the will, and one of these after the death of testatrix. Catherine H. Biemann mortgaged the lands devised to defendant. The mortgage was foreclosed by decree of court, and defendant purchased them at the sale, and claims the title under that sale. He claims title, also, upon other grounds, legal and equitable. But, in the view which we take of the ground stated, the others need not be considered.

If the words "absolutely in fee simple forever" had not been added to the previous words of the devise, there would be no difficulty, for the words "heirs of her body by the said H. D. A. Biemann" are the most apt to create a fee conditional special. Do the superadded words so modify the previous words, "heirs of her body," as to deprive them of their ordinary legal signification, denoting an indefinite line of descent, and show that they were used in the sense of "children," or to describe a class whose members testatrix intended should take directly from her under the devise, and not by descent through Catherine H. Biemann?

The ground upon which the affirmative of this question is based is that the superadded words are repugnant to an estate in fee conditional, but consistent with an estate in fee simple, and therefore, by implication, a fee simple must have been intended. If this contention be sound, as there is nothing in the superadded words, or other parts of the will, which indicates, or even suggests, that the words "heirs of her body" were used to denote "children," those words would have to be construed as descriptive of a class, the members of which were intended to take, and the "children" would take only by reason of the accidental circumstance that there were no others who answered description at the death of testatrix, the time when the devise took effect. If the circumstances had been different, and if some of the children had died, during the life of testatrix, leaving children, and some of these had in turn died, leaving children, all who satisfied the description, and were "heirs of her body by the said H. D. A. Biemann," at the death of testatrix, children, grandchildren, and great-grandchildren, would have taken, and per capita, and the after-born child would have been excluded. Myers v. Myers, 2 McCord, Eq. 214, 16 Am. Dec. 648; Lemacks v. Glover, 1 Rich. Eq. 141; Folk v. Varn, 9 Rich. Eq. 303. Could testatrix have intended such consequences? Nevertheless, if the words require such a construction, the consequences would not prevent it. This construction also involves the legal inconsistency of a living person having "heirs of her body."

On the other hand, one of the soundest rules of construction, founded by the sages of the law, the wisdom of which has been approved by succeeding generations as affording security and certainty to estates, is that, where an estate or interest is given in words of clear and ascertained legal signification, it shall not be enlarged, cut down, or destroyed by superadded words in the same or subsequent clauses, unless they raise an irresistible inference that such was the intention. The rule is thus stated in Carr v. Porter, 1 McCord, Eq. 61:

"An estate may be enlarged, controlled, and even destroyed by implication; but the principle must be taken subject to certain other well-established rules, as that, where an instrument is reduced to writing, nothing is to be implied which does not arise from the face of the writing. An estate by implication cannot be raised in direct contradiction to and denial of an express estate. An estate by implication can only arise by a necessary implication, and the necessity must appear on the face of the will. Such implication is inadmissible where the provisions of the will can otherwise be carried into effect."

In Jesson v. Wright, 2 Bligh, 1, Lord Eldon, in considering the effect of superadded words upon a limitation to W. for life, and after his death to the "heirs of his body," which created an estate tail, said:

"And in order to cut down this estate it is absolutely necessary that a particular intent should be found to control and alter it, as clear as the general intent here expressed. The words 'heirs of the body' will indeed yield to a particular intent that the estate shall be only for life, and that may be from the effect of superadded words, or by expressions showing the particular intent of the testator, but that must be clearly intelligible and unequivocal."

In the same case Lord Redesdale said:

"It cannot at this day be argued that, because the testator uses in one part of his will words having a clear meaning in law, and in another part other words inconsistent with the former, that the first words are to be canceled or overthrown. * * * It is dangerous, when words have a fixed legal effect, to suffer them to be controlled, without some clear expression or necessary implication. In this case it is argued that the testator did not mean to use the words 'heirs of the body' in their ordinary legal sense, but because there are other inconsistent words; but it follows that he was ignorant of the effect of the one or of the other."

His Lordship then bases his conclusion upon the rule " that technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise," and adds:

"It has been argued that 'heirs of the body' cannot take as tenants in common; but it does not follow that the testator did not intend that heirs of the body should take, because they cannot take in the mode prescribed. This only follows: That, having given to heirs of the body, he could not modify that gift in the two different ways which he desired, and the words of modification are to be rejected."

The inference is by no means necessary, or even clear, that testatrix intended that, if Catherine H. Biemann could not take the fee conditional devised, or if it could not descend to the heirs of her body " absolutely in fee simple forever," she should not take such an estate at all, and that the whole estate so devised to her should be cut down to an undivided interest therein, as tenant in common with those who might answer the description of "heirs of her body" at the death of testatrix. Having given such an estate in clear and unequivocal terms, and the superadded words being of doubtful import, they must be rejected, as a mere pleonasm. That which is of doubtful inference must yield to that which is certain.

It is clear that testatrix was ignorant of the legal effect of the one expression or the other, or she would not have used both. Such pleonastic and tautological expressions are of common occurrence in deeds and wills. We often find a grant or devise to one "and his heirs and assigns," followed by such words as "in fee simple forever," or "absolutely in fee simple forever." In such cases, the superadded words have no legal effect, because they add nothing to the estate limited. It is only when their precise legal signification is repugnant to the estate limited that they raise a doubt as to the intention. Numerous instances of the application of this rule will be found in our own decisions. We cite only a few:

In McAllister v. Tate, 11 Rich. 509, 73 Am. Dec. 119, there was a devise to A. "in fee simple for life." Held, that A. took the fee, and the words "for life" were rejected as absurd, or as repugnant to the estate already devised.

In Moore v. Sanders, 15 S.C. 440, 40 Am. Rep. 703, there was a devise to M. "in fee simple, * * * to dispose of as he may think fit, but, should he die without leaving a will, then the whole to go " over. Held, that M. took the fee, and that the limitation over was void, because repugnant to the fee devised.

In Allen v. Fogler, 6 Rich. 54, there was a conveyance to H. A. " and to the heirs of her body, and in case of her death before she has an heir, I desire whatever I may give to her may be the right and property of Josiah Gillett Allen, and in case of his death before he has an heir to belong to Harriett Allen." After describing the property which was intended for each of the grantees, the deed concluded: "Which said property I relinquish to them and their heirs forever." Held, that H. A. took a fee conditional, and that the limitation over was void, because a fee cannot be mounted on a fee in a deed. It will be noted that the concluding words, "to them and their heirs forever," were not allowed to have the effect of modifying the estate first limited.

In Clark v. Neves, 76 S.C. 487, 57 S.E. 614, 12 L. R A. (N. S.) 298, there was a deed to W. A. Clark, in trust for Eleanor B. Clark, "for and during her natural life, and at her death the said premises are to belong of right in fee simple to the...