Davenport v. Eskew

• Decision Date: 23 June 1904
• Citation: 48 S.E. 223,69 S.C. 292
• Parties: DAVENPORT v. ESKEW et al.
• Court: South Carolina Supreme Court

48 S.E. 223

69 S.C. 292

DAVENPORT

v.ESKEW et al.

Supreme Court of South Carolina.

June 23, 1904.

DEEDS—FEE SIMPLE—RULE IN SHELLEY'S CASE.

1. Where a conveyance is fee simple in form, except that in the part describing the property are the words, "The above-named land to be held by R. during her natural life, then to be distributed equally between her remaining heirs, " it is governed by the rule in Shelley's Case, and R. takes title in fee simple.

¶ 1. See Deeds, vol. 16, Cent. Dig. § 419.

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

Action by Jane Davenport against Amanda Eskew and others. Prom the circuit decree, plaintiff appeals. Affirmed.

McCullough & McSwain, for appellant.

Shuman & Muckenfuss, for respondents.

WOODS, J. The widow and children of Mathias Roberts agreed upon a division of his estate, and interchanged deeds for the lands. The deed to the widow, Matilda Roberts, is in form an ordinary fee-simple conveyance, with general warranty, except the following sentence at the conclusion of the first paragraph, describing and granting the land: "The above-named land to be held by Matilda Roberts during her natural life, then to be distributed equally between her remaining heirs."

Matilda Roberts died in 1903, leaving as her heirs her children, the plaintiff, Jane Davenport, and the defendants Amanda Eskew and Elizabeth Chapman, and the other defendants, the infant children of a deceased son. By her will, Matilda Roberts directed her executors to sell the land conveyed to her in the partition, and divide the proceeds among her two daughters, Amanda Eskew and Elizabeth Chapman, and the children of her deceased son, to the exclusion of her daughter, the plaintiff.

In this action for partition the plaintiff insists that, under the deed from the other heirs of Mathias Roberts, the testatrix took only a life estate, and upon her death the land became the property of those who then answered to the description of heirs. The master and the circuit judge both held that the rule in Shelley's Case was applicable, and that the deed conveyed a fee-simple title, which passed under the will of Matilda Roberts.

The much-discussed question whether the words, "to be distributed equally, " and simi-lar expressions, are sufficient to take a devise or conveyance out of the rule in Shelley's Case, must be regarded finally settled in this state by the unanimous judgment of this court in Simms v. Buist, 52 S. C. 561, 30 S. E. 400. This...