Clardy v. Clardy
| Decision Date | 18 January 1923 |
| Docket Number | 11106. |
| Parties | CLARDY ET AL. v. CLARDY. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Anderson County; Ernest Moore, Judge.
Action by O. J. Clardy and others against A. B. Clardy. Decree for defendant, and plaintiffs appeal. Affirmed.
The decree of his honor, Judge Moore, referred to in the opinion was as follows:
This is an action for the recovery of real estate. The complaint sets forth that R. O. Elrod, a citizen of Anderson county, on August 15, 1863, made his last will and testament, which omitting formal parts, is as follows:
The complaint alleges that he died leaving this instrument of force, and that it was duly admitted to probate in Anderson county; that defendant is in possession of a tract of land (described in the complaint) which is a part of the tract mentioned in said will; that Mary Francis Elrod was the only child of the said R. O. Elrod, and that she died on or about June 22, 1921, leaving as her only children the plaintiffs, all of whom are sui juris, and that they are heirs of the body of the said R. O. Elrod. It is admitted that plaintiffs are the lawful children of Mary Francis Elrod, who married Clardy, and had no other children; that she was the only child of R. O. Elrod, and that she survived him, and the plaintiffs admit for the purpose of this argument that the said Mary Francis Elrod Clardy many years ago by lawful deed conveyed away in fee simple all her interests in the real estate described in the complaint to persons other than plaintiffs.
The answer among other things denies the correctness of the will, but that issue is not now involved. The issue before the court arises under a demurrer, which for present purposes must be taken as admitting the correctness of the language of the will as set out in the complaint. The defendant demurs upon the ground that the complaint does not state facts sufficient to constitute a cause of action, since, under a proper interpretation of the alleged will of R. O. Elrod, Mary Francis Elrod, later Clardy, was the only person answering the description of "heirs of my body" at testator's death, and therefore took not only a life estate, but an estate in fee simple in the tract of land described in the complaint.
Who are the heirs of the body of R. O. Elrod under this will? At what point of time did testator mean for it to be determined who then answered the description "heirs of the body"? Is the remainder in this case a vested remainder or a contingent remainder? These are the considerations upon which the court must determine the single issue presented for its decision. In the absence of any language in the will clearly indicating an intention to exclude her from the fee, the court thinks that Mary Francis Elrod would take such fee as the only person answering the description of heir of the body of R. O. Elrod at his death. "The well-recognized rule is that when there is a devise to 'heirs' as a class, they take at the death of the testator, unless a different time is fixed by the word 'surviving,' or some other equivalent expression." McFadden v. McFadden (1916) 107 S.C. 104, 91 S.E. 987; Avinger v. Avinger, 116 S.C. 130, 107 S.E. 26. As supporting this principle see the cases cited in the opinion in the McFadden Case, and especially see Rochell v. Tompkins (1845), 1 Strob. Eq. 114; Seabrook v. Seabrook (1859) 10 Rich. Eq. 495; Glover v. Adams (1860) 11 Rich. Eq. 264; Shaffer v. McDuffie (1868) 14 Rich. Eq., 146; Boyce v. Mosely, 102 S.C. 361, 86 S.E. 771.
In the last named case the land was deeded "to Angelina and Thos. G. Bacon during the terms of their natural lives, or the lives of either of them, and afterwards to revert back to my estate; and be distributable amongst my next of kin." The Supreme Court held that this deed conveyed successive life estates to A. and B. with subsequent life estates to the next of kin, while the fee remained in the grantor and descended at his death to "the sole heir of the grantor," Angelina (Mrs. Bacon). See 102 S.C. at page 372, 86 S.E. at page 772.
[122 S.C. 454] At page 38, Moorman on Limitations, it is said: ."
In the Avinger Case Daniel Avinger left a will reading as follows: "The residue of my estate, real and personal, I give, bequeath and dispose of as follows, to wit: To my beloved wife, the land and appurtenances situated thereon, during the term of her natural life, and after her death to be divided equally among my heirs." Avinger left a widow, Laura, and a number of children by her and former wives; it was contended that she did not take as an heir of her husband in addition to taking a life estate, but the Supreme Court merely stated the rule to be otherwise as laid down in the McFadden Case. In a concurring opinion Mr. Justice Cothran referred to the fact that the issue must be determined in such cases by the character of the remainders conveyed to the heirs of testator. In a note in 33 L. R. A. (N. S.) p. 46, it is said that two reasons are given in support of this construction of the word "heirs" and similar words, one being "that it gives the words of description their natural and prima facie meaning" (33 L. R. A. [ N. S.] p. 4); and (2) "a reason more frequently brought forward is the preference of the law to construe a remainder as vested rather than as contingent." If the remainder is a vested remainder, of course, the taker of the fee would be determined at the death of the testator. "The general rule is that a gift to a testator's heirs, though after the death of a life tenant, is a gift to those who were the testator's heirs at law at the time of his decease." 28 R. C. L. 247.
Keeping in mind the principle that a remainder will not be held to be contingent if it can be construed as a vested remainder, since the courts favor the early vesting of estates, noting carefully the language of the will in the case at bar, and comparing it with the language in some of the above cited cases, it would seem clear that the remainder here is a vested remainder.
It is contended on behalf of plaintiffs that there is an inconsistency between an intention to provide a life estate for Mary Francis, and a further intention that she should take as a remainderman in fee. The court cannot see the...
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