86 S.E. 211 (S.C. 1915), 9187, Adams v. Verner

Docket Nº9187.
Citation86 S.E. 211, 102 S.C. 7
Opinion JudgeHYDRICK, J.
AttorneyR. 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.
Case DateSeptember 10, 1915
CourtSupreme Court of South Carolina

Page 211

86 S.E. 211 (S.C. 1915)

102 S.C. 7




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.

Page 212

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.


[102 S.C. 10] 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 [102 S.C. 11] 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...

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