Buck v. Tolar

• Citation: 144 S.E. 1,146 S.C. 294
• Decision Date: 30 June 1928
• Docket Number: 12477.
• Parties: BUCK v. TOLAR et al.
• Court: United States State Supreme Court of South Carolina

144 S.E. 1

146 S.C. 294

BUCK v. TOLAR et al.

No. 12477.

Supreme Court of South Carolina

June 30, 1928

Appeal from Common Pleas Circuit Court of Horry County; S.W. G Shipp, Judge.

Action by H. L. Buck, as executor of the will of Georgia Virginia Buck, deceased, against Ella Buck Tolar and others. From the decree, the executor appeals. Reversed and rendered.

Cordie Page, of Columbia, for appellant.

Sherwood & McMillan and Ford & Suggs, all of Conway, for respondents.

COTHRAN J.

This action was brought in the court of common pleas of Horry county on December 11, 1926, by H. L. Buck, as executor of the will of his mother, Georgia Virginia Buck, against certain devisees under said will, to obtain from the court a construction of the will and codicil, particularly with reference to a parcel of land referred to in the will and codicil as "Dunean."

The genealogy of the family is necessary to an understanding of the discussion of the issues involved:

Georgia Virginia Buck, the testatrix, died, leaving four children all of age, married, and with child or children: I, Ella Buck Tolar; II, Iola Buck Burroughs; III, Jessamine Buck Richardson; and IV, Henry L. Buck.

I. Ella Buck Tolar has only one child, a son, Thomas Norman Tolar.

II. Iola Buck Burroughs, has four children: (1) Edward Burroughs over 21 years of age; (2) Jessamine Whalen, over 21 years of age; (3) Henry Burroughs, about 16 years of age; and (4) Virginia Burroughs, under 14 years of age.

III. Jessamine Buck Richardson, has one child, a son, Donald Richardson, over 21 years of age.

IV. Henry L. Buck has two children: (1) Henry L. Buck, Jr., a minor over 14 years of age; and (2) Eugenia Buck, a minor under 14 years of age.

All are either parties plaintiff or defendant to this proceeding except Edward Burroughs, Jessamine Whalen, and Virginia Burroughs, children of Iola Buck Burroughs, and Eugenia Buck, child of Henry L. Buck.

The testatrix, Georgia Virginia Buck, died November 30, 1925, leaving of force a will dated June 28, 1909, and a codicil thereto, dated August 26, 1914, both of which have been duly admitted to probate in Horry county, and the plaintiff, Henry L. Buck, appointed executor thereof, has duly qualified.

In paragraph 1 of the main will, the testatrix provides for the payment of her debts, funeral and testamentary expenses, "and subject thereto," pecuniary legacies of $500 to each of two of her children, Ella Buck Tolar and Henry L. Buck.

In paragraph 2 of the main will, the testatrix declares:

"All the rest of my property, real, personal and mixed, of which I may die seized and possessed or to which I may be entitled in expectancy, reversion or remainder I give, devise and bequeath unto my son, Henry Lee Buck, whom I hereby appoint my executor and trustee, for the several parties hereinafter named, in trust nevertheless for uses and purposes hereinafter expressed, and the trusts hereinafter declared-that is to say:"

In subdivision A of this paragraph she directs that her residence and tract of land (containing between four and five acres), at Murrell's Inlet in Georgetown county, be held in trust for the use and benefit of her grandson, the defendant Thomas Norman Tolar, son of her daughter Ella Buck Tolar, for and during the term of his natural life, under certain conditions and limitations, which, in view of the fact that this provision in favor of Thomas Norman Tolar, was revoked, as will appear, by the codicil of August 26, 1914, need not be introduced into the situation which is sufficiently complicated without them.

Subdivisions B, C, D, and E of paragraph 2 and paragraphs 3, 5, and 6 of the will do not concern the present inquiry.

Paragraph 4 is as follows:

"All the rest and residue of my estate, not hereinbefore specifically devised and bequeathed, and such as may be by reason of the conditions and restrictions hereinbefore imposed upon said special devisees and bequests become a part of my residuary estate, I give, devise and bequeath to my said trustee, in trust for my four children, namely, Ella Buck Tolar, Henry Lee Buck, Iola Buck Burroughs, and Jessamine Buck Richardson, share and share alike (but the $500.00, the special bequest of my daughter, Ella Buck Tolar, in paragraph first of this instrument shall be charged to her and accounted for), for and during their natural lives, and at their deaths for and to their lineal heirs, in fee simple, per stirpes.

Should either of my said children pre-decease me, or surviving me, die leaving no lineal descendants, then the provisions hereinbefore made, for the one or the ones so dying, shall lapse and his, her or their share shall be divided among the survivors and the children of such as may be dead, according to the statutes of South Carolina."

Five years later than the date of the main will, on August 26, 1914, the testatrix duly executed a codicil thereto, in which she declared in reference to the devise in subdivision A of paragraph 2 of the will as follows:

"Whereas, my said last will, I gave and bequeathed unto Norman Tolar all and singular that certain piece of property situated on Murrell's Inlet in Georgetown county, known as Dunean. Now I do hereby revoke said legacy to the said Norman Tolar, and in lieu thereof, I wish to divide this property among my four children, giving each a lot as near alike as it can be reasonably divided.

Jessie to have the lot with dwelling and other out buildings. Bell to have next lot. Iola the next. Hal the next.

It is my wish that these lots shall never be sold as long as any of my children, grandchildren, great grandchildren, or any member of my family, no matter how far off the relation, should be living.

Jessie's lot to be her's her life time, at her death to be Donald's his life time, at his death to go to any other child Jessie may have, his or her life time. At the death of Jessie's children the property to go to their children if they should leave any, if not, to come back to any other child, grandchild, great grandchild, or any other relative of mine who may be living.

Iola's to be her's her life time, at her death to go to Henry and at his death the same conditions as I have expressed in regard to Jessie's lot.

Bell's lot to be her's her life time, at her death to go to Henry and at his death the same conditions as I have expressed in regard to Jessie's lot. (Evidently an error.)

Bell's lot to be her's her life time, at her death Norman's and at his death, the same conditions as expressed for Iola's and Jessie's.

Hal's to be his his life time, at his death his son Henry with the same conditions as have been expressed in regard to the other lots. It is my wish that these lots should never be sold."

The controversy is as to the effect of this part of the codicil. Both sides agree that the provisions are void as offending the rule against perpetuities, as to which we think that there can be no doubt. The executor contends that the entire provisions are void, and that the property falls under the residuary clause, paragraph 4 of the will; the defendants, that the avoidance of the provisions under the rule against perpetuities enlarges the estates of those devisees who are given life estates, into fee-simple estates.

The matter was heard by his honor Judge Shipp upon the pleadings, the will, and the codicil.

Under date of January 31, 1927, he rendered a decree wherein he held, briefly:

(1) That the purpose of the testatrix was to create a perpetuity by giving each of her daughters, Ella Buck Tolar, Iola Buck Burroughs, Jessamine Buck Richardson, and her son, the plaintiff, H. L. Buck, an estate for life in certain designated portions of "Dunean"; at their deaths, respectively, that Thomas Norman Tolar should hold the share of his mother, Ella Buck Tolar, for life; that Donald Richardson should hold the share of his mother, Jessamine Buck Richardson, for life; that Henry Burroughs should hold the share of his mother, Iola Buck Burroughs, for life; and Henry L. Buck, Jr., should hold the share of his father, the plaintiff, H. L. Buck, for life, with limitations over after their deaths to other grandchildren of the testatrix down to the remotest degree-the remainders being to dubious and uncertain individuals.

(2) That the limitations over are too remote, indefinite, and uncertain, cannot be practically enforced, and therefore void.

(3) He further held, as a consequence, that her four children above named, Ella Buck Tolar, Iola Buck Burroughs, Jessamine Buck Richardson, and H. L. Buck, are entitled to a life estate in the certain portions of "Dunean" designated for them, and that Thomas Norman Tolar, Henry Burroughs, Donald Richardson, and Henry L. Buck, the younger, are the owners in fee of the portions of "Dunean" in which their parents respectively own a life estate.

From this decree the executor has appealed, contending that his honor should have held that, the limitations in the codicil being void for remoteness and indefiniteness, the property known as Dunean fell into the residuary clause, subject to disposition by the executor under paragraph 6 of the will. We think that the contention of the executor must be sustained.

In 21 R. C. L. 322, the rule is thus stated:

"It is sometimes said that where a devise fails and cannot be carried into effect because it violates a provision of law, the fee vests in the person or persons holding the last preceding estate. It is true that where the preceding estate is a fee simple subject to conditional limitations which are void for remoteness, the holder of the preceding estate is permitted to retain this estate in fee simple absolutely, discharged of all conditional limitations. For example where a devise is made to a man and his heirs forever, and for

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