Barber v. Crawford

• Decision Date: 23 February 1910
• Citation: 85 S.C. 54,67 S.E. 7
• Parties: BARBER et al. v. CRAWFORD et al.
• Court: South Carolina Supreme Court

67 S.E. 7

85 S.C. 54

BARBER et al.

v.CRAWFORD et al.

Supreme Court of South Carolina.

Feb. 23, 1910.

1.Wills (§ 603^*)— Construction —Conditional Fee—"Devise in Fee."

Under the rule that an estate in fee conditional cannot be created by implication, a devise to a child, followed by a provision. that on his death without bodily heirs the property shall be divided among the surviving heirs of the testator, is a "devise in fee, " and is not converted into a fee conditional because of the absence of express words vesting an estate in the bodily heirs.

[Ed. Note.—For other cases, seeWills, Cent. Dig. §§ 1351-1359;Dec. Dig. § 603.*

For other definitions, seeWords and Phrases, vol. 3, pp. 2047-2049; vol. 8, p. 7636.]

2.Wills (§ 625*) — Construction — Executory Devise.

A limitation in a will devising real estate to a child, and providing that on his death without bodily heirs the property shall be divided among the surviving heirs of testator, is good as an executory devise whether the child takes an absolute or a conditional fee.

[Ed. Note.—For other cases, seeWills, Cent. Dig. §§ 1447-1451;Dec. Dig. § 625.*]

3.Wills (§ 524*) — Construction — Survi-vorsiiip.

The rule which makes a gift to survivors simply apply to objects living at the death of testator is confined to those cases in which there is no other period to which survivorship can be referred; but, where such gift is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution and of those only.

[Ed. Note.—For other cases, seeWills, Cent. Dig. §§ 1116-1127;Dec. Dig. § 524.*]

4.Wills (§ 524*)—Construction—Survivorship—"Surviving Heirs. "

The "surviving heirs" in a' devise to a child, followed by the provision that on his death without bodily heirs the property shall go to the sur-viving heirs of testator, are the distributees under the statute of distribution in being at the death of the child, and until his death it cannot be ascertained who will take as surviving heirs.

[Ed. Note.—For other cases, seeWills, Cent. Dig. § 1122;Dec. Dig. § 524.^2-*

For other definitions, seeWords and Phrases, vol. 8, pp. 6825-6832.]

Appeal from Common Pleas Circuit Court of York County; R. W. Memminger, Judge.

Action by T. Emiline Barber and others against Thomas A. Crawford and others.From a judgment for defendants, plaintiffs appeal.Affirmed.

Spencer & Spencer, for appellants.

Wilson & Wilson, for respondents.

GARY, A. J.The facts are thus stated in the decree of his honor, the circuit judge:

"Turner Barber died, testate, about 25 years ago, before the birth of any grandchildren, leaving considerable property in lands and personalty to his wife and his and her seven children.His will and its two codicils show that, after charging some of his said property with his wife's support during her life, he devised it all amongst his said seven children, making the share of some of them absolute, and of the others conditional.A part of his disposition in behalf of his son, T. Henderson Barber, is the premises here in question, by the first section of his first codicil, as follows: 'First give and devise to my son, Turner Henderson, the lot of land with appurtenances, situated in the town of Rock Hill, fronting on Main and Church streets, and bounded by lots of S. G. Kistler and F. H. Barber, in the county of York, and state of South Carolina.This lot in my said will, I devised to my daughter, Mary Anna; but I now, in this codicil, devise to my son, Turner Henderson, as aforesaid; I also give and devise to my son, Turner Henderson, the sum of twenty-five hundred dollars; and this legacy is not in addition to, but is instead of the legacy of fifteen hundred dollars, bequeathed in my said will; I also give and bequeath to him my horse named Charlie, and four of my mules named, respectively, Pete, Dan, Prince, and Jack.'Then by the seventh section of this second codicil, he makes the following general provision: 'Seventhly, if any of my children, named in my said will or codicils, to whom I have given my property, should die, without bodily heirs, it is my will that all of said property, be equally divided among my surviving heirs, share and share alike.'

"The defendant, Crawford, by sheriff's deed, has acquired all the right, title, and interest of said T. Henderson Barber, in said lot of land.Of said seven children, two have died in the following order: First, Ella, without issue; and, secondly, Mattle, who left issue, a son, Hal Bahnson.Of the five living children, Sarah Ross has five children Alexander, five; Osmond, two; and Anna and T. Henderson, each, no children.The widow, T. Emiline Barber, is still living.She and all of the living children bargained with defendantDr. Thomas A. Crawford, of Rock Hill, to sell and convey, or to have conveyed, to him, for three thousand dollars, all possible outstanding interests in said lot of land, except that claimed by Alexander Barber.They have tendered their own joint deed therefor, as a full compliance with their said contract; and, said Crawford refusing to accept same, they have brought their complaint against him for specific performance on his part.Said Alexander Barber and said Hal Bahnson(only issue of said Mattie, deceased), are named as defendants, but have not been served, as said Alexander was not a party to plaintiff's contract with Dr. Crawford, and as said Hal, from plaintiff's standpoint, has no interest in the premises under the will; and with said Alexander, defendant, has another contract as to his alleged interest therein.

"The answer of the defendant Crawford sets out, in substance: That in acquiring all the right, title, and interest of the plaintiffT. Henderson Barber in said lot of land, he became the sole and absolute owner in fee simple in said lot of land; but that, in view of the contention by plaintiffs that under the terms of the said seventh section of the second codicil of the will of Turner Barber, they have an interest in the premises as remaindermen, and upon the further suggestion that possibly, under the terms of said will and codicil, the descendants of said testator, may have an interest therein, and in view of the further fact that this defendant is desirous of placing extensive and costly improvements upon the said premises, and in order to absolutely quiet his title...