Clark v. Same

Decision Date03 April 1907
Citation70 S.C. 484,57 S.E. 614
PartiesCLARK et al. v. NEVES. SAME v. GILREATH et al. SAME v. ROE (two cases). SAME v. EDWARDS.
CourtSouth Carolina Supreme Court
1. Deed—Construction—Life Estate.

A deed conveying land in trust for the use of B. for life, and at her death to be divided among her surviving children, carries a life estate to B., with remainder to her surviving children as purchasers.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 360-365, 413-415.]

2. Same—Conditional Fee.

A deed conveying land in trust for the use of B. for life, and at her death in fee simple to her lineal heirs forever, carries a conditional fee to B., and her lineal heirs take by inheritance.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 413-415.]

3. Process — Service — Evidence — Presumptions.

Where the record in the probate court does not show service of summons on minors under 14 years of age, or on their guardian or parent, after 20 years it will be presumed that they were properly served.

Appeal from Common Pleas Circuit Court of Greenville County; Purdy, Judge.

Action by J. H. Clark and others against B. F. Neves; by the same plaintiffs against A. D. and J. P. Gilreath; by the same plaintiffs against T. M. Roe; by the same plaintiffs against Fannie K. Roe; and by the same plaintiffs against J. A. Edwards. Judgment for plaintiffs in the first case, and defendant appeals; and for defendants in the four other cases, and plaintiffs appeal. Judgment in the first case reversed, and complaint dismissed, and in each of the other four cases judgment affirmed.

Blythe & Blythe, for plaintiffs. Jos. A. McCullough, for respondents.

JONES, J. These were five separate suits for partition. The issues of title raised in the answer were submitted to the jury, and verdicts were rendered under direction of the court. These verdicts were confirmed on the equity side of the court, and decrees made dismissing the complaint in the four last-named cases, and with respect to the first-named case it was adjudged that plaintiffs were only entitled to partition as owners of an undivided five-sixths of one-ninth interest in the 45 1/4 acres of land claimed by B. F. Neves, embraced in the Springfield tract, and an accounting for rents and profits thereof for six years preceding the action. The lands in question were conveyed to W. A. Clark, as trustee for Eleanor B. Clark, in three separate deeds—one by Bennett Springfield in 1855, for 57 acres; one by H. J. Gilreath in 1857, for 219 acres; and one by T. B. Roberts in 1858, for about 135 acres. These three tracts were contiguous and remained in the possession of Mrs. Clark as one body of land until 1873, when proceedings were instituted in the probate court for partition and sale. Under these proceedings the defendant Neves held 45 1/4 acres of the Springfield tract and 100 acres of the Gilreath tract; the defendants A. D. & J. P. Gilreath held 72 3/4 acres of the Gilreath tract; the defendants T. N. Roe, Fannie K. Roe, and J. A. Edwards held portions of the Roberts tract, containing, respectively, 58, 35, and 45 acres. Eleanor B. Clark died August 8, 1897, and these actions were commenced October 9, 1905, by the plaintiffs, claiming estates in remainder in the premises under the deeds of Eleanor B. Clark, and that they were infants at the time of the partition and sale in the probate court, were not properly made parties thereto, and were not bound thereby.

1. The first question, then, is as to the construction of the deeds under plaintiffs' claim. The language of the Springfield deed is "to have and to hold * * * unto the said W. A. Clark trustee as aforesaid in trust for the sole and separate and exclusive use of the said Eleanor B. Clark during her life, * * * and at the death of the said Eleanor B. Clark to be divided amongst her children surviving her, grandchildren to represent the share of a deceased child." The circuit court construed this deed to give Eleanor B. Clark a life estate with remainder to her surviving children as purchasers. Hence the plaintiffs, as children of a deceased child, took the share of that child, or five-sixths of one-ninth of the Springfield tract. This ruling affected defendant Neves alone, and he has not excepted thereto. We refer to it, however, because it serves to illustrate the question of construction involved in this appeal. The construction was correct and in accord with Bannister v. Bull, 16 S. C. 225, and Smith v. Smith, 24 S. C. 304, and other cases which hold that the rule in Shelley's Case is not applicable when the limitation is to "children, " immediate offspring, a restricted class or number who take as purchasers, as distinguished from "heirs" or "heirs of the body, " which terms, without superadded qualifying words, denote an indefinite line of descent, taking by inheritance.

2. The Gilreath and Roberts' deeds are practically the same language: "To have and to hold * * * to said W. A. Clark, in trust for * * * Eleanor B. Clark, * * * for and during her natural life, andat her death the said premises are to belong of right in fee simple to the lineal heirs of the said Eleanor B. Clark forever." The circuit court held that the rule in Shelley's Case applied here, and that Eleanor B. Clark took a fee conditional. Hence plaintiffs had no interest in the Gilreath and Roberts' tracts. The appellants contend that this construction was erroneous, that the limitation "lineal heirs" is so qualified by the superadded words "in fee simple" "forever" as not to denote an indefinite line of descent, but a new stock of inheritance, "lineal heirs" living at the death of the first taker. This being a deed instead of a will, and an executed trust instead of an executory trust, the construction must be governed by the strict rules of the common law. McMichael v. McMichael, 51 S. C. 557, 29 S. E. 403. The apparent intent can only be given such effect as accords with the established rules governing common-law conveyances. The words "lineal heirs, " like "heirs of the body, " mean all lineal descendents to the remotest posterity, and are words of inheritance, and not of purchase, unless the instrument clearly shows they were used in a restricted sense to denote "children." Duckett v. Butler, 67 S. C. 130, 45 S. E. 137; Holman v. Wesner, 67 S. C. 307, 46 S. E. 206. The words at her death "the said premises are to belong of right in fee simple to the lineal heirs of the said Eleanor B. Clark forever" cannot have such restricting effect, for that would contradict the apparent intent to provide for other of the lineal descendants not children; and, furthermore, the added words are quite as consistent with the theory that they take the fee by inheritance as that they take by purchase.

Under the rule in Shelley's Case, if an estate of inheritance be given to the ancestor, and a remainder be thereon limited to his heirs, or to the heirs of his body, such remainder is immediately executed in possession in the ancestor, so that the ancestor takes the whole estate in fee simple if the limitation be to heirs general, and in fee conditional if the limitation be to the heirs of the body. Austin v. Payne, 8 Rich. Eq. 10; Williams v. Foster, 3 Hill, 193. When, therefore, the deed is construed according to the ordinary rules of construction, and it is ascertained that the words "heirs" or "heirs of the body" are used in their technical sense as describing an entire class or denomination of heirs, the rule in Shelley's Case, as stated above, applies. In using the words "lineal heirs, " the grantor in this case evidently intended the limitation to be not only to children, but to grandchildren, greatgrandchildren, and so on down the line of...

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