Brantley v. Bittle

• Decision Date: 18 July 1905
• Citation: 51 S.E. 561,72 S.C. 179
• Parties: BRANTLEY et al. v. BITTLE et al.
• Court: South Carolina Supreme Court

51 S.E. 561

72 S.C. 179

BRANTLEY et al. v. BITTLE et al.

Supreme Court of South Carolina

July 18, 1905

Appeal from Common Pleas Circuit Court of Chesterfield County Watts, Judge.

Action by Jno. H. Brantley and others against J. Westley Bittle and others. From circuit decree defendants J. Westley Bittle and Mary U. Liles appeal . Modified.

Stevenson & Matheson and Edward McIver, for appellant J. Wesley Bittle. W. P. Pollock, for respondents and for appellant Mary U Liles.

GARY A. J.

This is an action for partition and to enjoin the enforcement of a judgment rendered against the testator in 1867, and revived in 1900 against the administrator of his estate. The appeal raises the question as to the validity of the judgment, and involves the construction of the testator's will. John Bittle made his will in 1868, and died prior to the 22d of February, 1871, as the will was admitted to probate on that day. The fifth clause of the will is as follows: "Fifth I give and bequeath to my daughters, Roxana Bittle and Emily Vick (widow of Albert Vick, deceased,) the whole of the remainder of my estate, both real and personal, to have, hold and enjoy the same jointly during their natural lives, and upon the death of either of my said daughters (Roxana or Emily), it is my will and desire that that portion of my estate to which she was entitled at her death shall go to the one then surviving (Roxana or Emily), and at the death of the other, it is my will and desire that the whole of my estate, both real and personal, be equally divided among all my heirs, share and share alike, my grandson Franklin Bittle, son of my daughter, Emily Vick, taking an equal share with the other of my heirs, the child or children of any deceased parent taking the share to which his, her or their parent would have been entitled, if living." The testator left surviving him eight children, viz., Eliza J. Brantley, Elmira Long, Narcissa Buchanan, Emily Vick, Roxana Bittle, Mary Ulsey Liles, Irvin Bittle, and John W. Bittle; also three grandchildren, children of his deceased son Burrel Bittle. He likewise left surviving him his grandson Franklin Bittle, an illegitimate son of Emily Vick. Franklin Bittle and certain of the heirs conveyed their rights in the testator's estate to John W. Bittle, Eliza J. Brantley, one of the parties making said conveyances, died, leaving children, before the surviving life tenant. The surviving life tenant died on the 31st of May, 1900.

The first question that will be considered is whether the children of Eliza J. Brantley, who conveyed her share to John W. Bittle, have any interest in the estate under the will of the testator. His honor the circuit judge ruled upon this question as follows: "The referee held that under the clause of the will set out above the children of the testator who were alive at the time of the death of the testator, and Franklin Bittle, who was specially provided for in the will the same as the children of the testator, and the children of Burrel Bittle, collectively representing their father, took a vested fee in remainder, and that 'it therefore follows that if, during currency of the life estates, any of these remaindermen conveyed away his or her interest in said estate, the purchaser of such interest took a good title thereto, and the children of such remaindermen have now no interest or title thereto.' It seems clear that the testator, by the use of the word 'heirs,' meant heirs taking per stirpes, which in this case means the same as 'children,' and immediately upon the death of testator the title to the realty which is herein sought to be partitioned vested in these children of testator, who were surviving at the time of his death, and in the children of Burrel Bittle (his deceased son), and in Franklin Bittle, jointly. They took a vested, transmissible interest in remainder, and, were it not for the use of the words, 'the child or children of a deceased parent taking the share to which his, her or their parent would have been entitled if living,' it might be construed to be a vested, transmissible indefeasible fee in remainder; but by the use of the words quoted above from the will the testator provided for another class to take as executory devisees in case any of the first class, his children or 'heirs,' as intended by the terms of the will, should die during the life estate, leaving children. If any of his children who were surviving at his death should die during the life estate leaving children, then the interest of such child of the testator which had been vested would be divested, and the children of such deceased child would take as executory devisees by substitution. And as the grantee of any such deceased child of the testator could not take any greater interest in the estate than his grantor had, as by the death of any child or 'heir' of the testator during the life estate leaving child or children the fee would be divested, and by substitution vested in such child or children as executory devisees, it necessarily follows that the title to an interest given by a child or 'heir' of testator who died during the life estate leaving child or children would not constitute good title, but, on the contrary, the child or children of such child or 'heir' of testator would take the title which had been in the parent. These views are fully sustained by the case of Brown v. McCall, 44 S.C. 504, 22 S.E. 823, and the case of Rutledge v. Fishburne, 66 S.C. 155, 44 S.E. 564, 97 Am. St. Rep. 757."

The appellant contends that the words, "the child or children of any deceased parent, taking the share to which his, her or their parent would have been entitled if living," have reference to the children of the testator dying during his lifetime, and not to the heirs dying after his death and before the falling in of the life estates; that those words were used for the purpose of showing that the division among his heirs was to be made per stirpes, and not per capita. These words were not intended to show the proportions in which those answering the description of heirs at the death of the testator should take, for in that case they would be inconsistent with the provision that the estate should be "equally divided" among such heirs, "share and share alike," and there is no necessity for resorting to such construction. Full force and effect can be given to both provisions by construing the said words in the last sentence of the foregoing clause as intending that the child or children should take the share of the heir who died after the testator and before the falling in of the life estates. Under our construction of the will, the circuit judge erred in ruling that the word "heirs" was used in the sense of "children." It was therefore necessary to resort to the statute of distribution for the purpose of ascertaining who were the testator's heirs. When there is a devise to a class, and it is necessary to resort to the statute of distribution for the purpose of ascertaining who compose the class, it will also be necessary to consult the statute in order to determine the proportions in which the individuals take, unless the context of the will shows in what proportions the testator intended they should take. The words "equally divided" and "share and share alike" manifest the intention of the testator that those answering the description of "heirs" at his death should take per capita, and not per stirpes. Allen v. Allen, 13 S.C. 512, 36 Am. Rep. 716; Dukes v. Faulk, 37 S.C. 255, 16 S.E. 122, 34 Am. St. Rep. 745. The decree of the circuit judge as to the question under consideration (except in the respects indicated) is satisfactory to this court, for the reasons therein stated, and his conclusion is fully sustained by the authorities which he cites, to which may be added the case of Woodley v. Calhoun, 69 S.C. 285, 48 S.E. 272. The exceptions raising this question are overruled, as they do not assign error in the ruling that the heirs take per stirpes, instead of per capita.

Roxana Bittle and Irvin Bittle died, without leaving children, about the year 1873. Thereafter Eliza J. Brantley conveyed to John W. Bittle "all the right, title, interest, claim and demand which she had of, in and to all the undivided estate of John Bittle, either in possession or expectancy." She died before the death of the last life tenant, leaving children. The question for consideration is whether the shares which Eliza J. Brantley took as one of the heirs of Roxana Bittle and Irvin Bittle passed by her conveyance to John W. Bittle, or descended to her children at the time of her death, under the provision of the will that they should take by substitution in case the parent died before the falling in of the life estates. The language of the deed is comprehensive enough to...