Cothran, J., dissenting.
Appeal from Common Pleas Circuit Court of, Newberry County; H. P. Rice, Judge.
Action by Frances C. Black against Harriet P. Harman and others. From an orderoverruling a demurrer to the complaint, the named defendant appeals. Reversed.
Eugene S. Blease and Dominick & Workman, all of Newberry, for appellant.
Geo. B. Cromer, of Newberry, and B. B. Hare, of Saluda, for respondent.
GARY, C. J. The following statement appears in the record:
"This is an action against the defendant, Harriet F. Harman, the mother of the plaintiff, for an accounting of the rents and profits of certain lands described in the complaint, which lands had been d?vised to the defendant by her father, Frederick H. Dominick, in the year 1891. The plaintiff claims 'that under the terms of the devise she has a vested interest in the income from the said lands to the extent of one-tenth thereof, the said income being subject to equal distribution among the said Harriet F. Harman and her said children, ' and that she 'is entitled to an accounting and to her distributive share of the income from the said lands, ' and demands judgment for such alleged share. The other defendants are the children of Harriet F. Harman, and brothers and sisters of the plaintiff. There are in all nine children, all of whom were living at the time of the death of Frederick H. Dominick on the 24th day of July, 1891, and are now living, except the defendant J. W. Harman, who has died since the commencement of this action, intestate and unmarried. His death does not affect the issues in the action.
"The action was commenced February 23, 1920, and the defendants duly answered, admitting that Harriet F. Harman had had exclusive control of the said lands; had received the annual rents and income; had used same for the benefit of herself and children; that all of the said children had been treated alike; that she had kept up the land, paid the taxes on same, and maintained herself and family; that the plaintiff is married and living with her husband apart from the defendants, but the defendant, Harriet F. Harman, has largely contributed to her support and maintenance, the plaintiff having received more from her mother than any of the other children. The defendant Harriet F. Harman further claims that she has a life estate in the said lands, with the right to use the income therefrom as she may desire without accounting, and that the children have a vested remainder in the said lands, and are entitled to the same upon her death, share and share alike. She denies that the plaintiff is entitled to an accounting and any distributive share of the income from the lands, and denies that she has any right, title, or interest in or to the rent or income or profits derived from the said lands.
"The lands devised to Harriet F. Harman were devised to her 'to have and to hold to the use and benefit of herself and her children during her life, and then to her children absolutely, as in the case of each of my other children.' The devises in the case of each of the other children were made subject to the same uses and limitations as are prescribed in the devise to his son, Jacob L. Dominick, which was 'to have and to hold the same during his natural life for the use and benefit of himself and children, and at his death to go to his children
absolutely, share and share alike, the children of a predeceased child to take the share to which their parent would have been entitled.' Frederick H. Dominick was survived by five children.
"On September 23, 1921, the attorneys for the defendants have notice of demurrer, in writing, to the attorneys for the plaintiff, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, in that the plaintiff has no such interest as is alleged in the complaint in the income, rents, and profits received from the lands described in the complaint, nor is the plaintiff entitled to an accounting thereof or to any of the relief demanded in the complaint.
"On May 10, 1920, the case was referred to the master for Newberry county for his report on all issues, but by consent the issues of law were withdrawn from the master, to be determined by the court, and at the December term, 1922, the case was marked heard, and written arguments submitted to the presiding judge."
On the 23d of February, 1923, his honor the circuit judge filed the following order:
"The principal facts in the above case are undisputed.
"Frederick H. Dominick, of said county, died in 1891, seized and possessed of considerable lands and personal property. He was survived by five children and several grandchildren, among them being his daughter, the defendant Harriet F. Harman, and her children, of whom the plaintiff is fine, and the others are made defendants.
"The said Frederick H. Dominick left a will, the thirteenth clause of which is as follows: 'I will to my daughter Harriet Harman my Tinsley place and my Carlisle place, to have and to hold to the use and benefit of herself and her children during her life, and then to her children absolutely, as in the case of each of my other children.'
"All of the said children of Harriet F. Harman, the plaintiff being one, have long since attained their majority. The said Harriet F. Harman at, or about the date of the death of the testator, went into possession of the said lands, and is still in possession of same. The plaintiff claims that she is entitled to a distributive share of the rents and profits of said realty, which the defendant denies. A proper construction of the above set out clause of the will in question will settle the issue.
"The only safe rule in construing a will is to assume that the testator means what he says, if the language is clear and unmistakable. This is the case before us. The property in question is to be used by the defendant Harriet F. Harman for her own benefit and that of her children so long as she lives. The possession of the land is vested in her for life, but impressed with a trust in favor of the children, to the effect that they shall share with the mother whatever benefits may be derived from the use of the lands, and as to such benefits in the way of rents, profits, etc., the mother and children are tenants in common in equal shares and proportions. This sharing of the rents, profits, etc., of said lands is to continue so long as the mother lives, then the property in question goes to the children absolutely. In my view this is the only reasonable construe-tion to be given the said clause. In no other provision of the will is there any expression which might show a different intention to that set out in the above construction. See, also, the cases of Feemster v. Good, 12 S. C. 073, and Hunter v. Hunter, 58 S. C. 388, 36 S. E. 734, 79 Am. St. Rep. 845."
The defendant appealed upon the following exceptions:
"(1) That his honor, the presiding judge, erred in not sustaining the demurrer of the defendants upon the ground that the complaint does not state facts sufficient to constitute a cause of action for the reason that the plaintiff has no such interest in the income, rents, and profits of the land described in the complaint, as is alleged in the complaint.
"(2) That his honor, the presiding judge, erred in holding that the land, and the possession of the land, was impressed with a trust in favor of the children, to the effect that the mother and children are tenants in common in equal shares and proportions in the income, rents, and profits of the land, it being respectfully submitted that, under the will of Frederick H. Dominick, the children are not tenants in common in equal shares and proportions in the income, rents, and profits of the land.
"(3) That his honor, the presiding judge, erred in holding that the land was impressed with a trust under the will and the children entitled to equal shares and proportions in the income, rents, and profits of the land, it being respectfully submitted that, if the land were impressed with a trust, it was not such a trust as the court can take cognizance of and enforce, in that (a) there are no words showing the precise nature of the trust intended to be impressed; (b) there are no mandatory words in the will showing the creation of a trust, or the manner in which the alleged trust is to operate; (c) the beneficiaries are not named; (d) the interest which each beneficiary is to take is not shown by the will; (e) the proportion to which each is entitled is not shown by the will."
Opinion.
The ruling of his honor the circuit judge, which gives rise to this appeal, is as follows:
"The property in question is to be used by the defendant Harriet F. Harman for her own benefit and that of her children so long as she lives. The possession of the land is vested in her for life, but impressed with a trust in favor of the children, to the effect that they shall share with the mother whatever benefit may be derived from the use of the lands, and as to such benefits in the way of rents, profits, etc., the mother and children are tenants in common in equal shares and proportions."
It was not the intention of the circuit judge to decide the rights of the parties in the remainder to the children, for the reason that the possession of the land was vested in the mother for life, and was to be used by her for her own benefit and that of her children, so long as she lives; and therefore that there could be no merger of the remainder and the
other estates created by the will, so as to execute the use devised to the mother and her children.
The question, therefore, is, whether there was a merger of the life estate and the equitable estates of the mother and children, whereby the use in the life estate was executed. It will be seen, by reference to the opinion of Mr. Justice Cothran, that he uses these words:
"It is by no means certain that...
