Duncan v. Harper

• Citation: 4 S.C. 76
• Parties: DUNCAN v. HARPER.
• Decision Date: 03 January 1873
• Court: United States State Supreme Court of South Carolina

4 S.C. 76

DUNCAN v. HARPER.

Supreme Court of South Carolina.

January 3, 1873

Bequest of $1,000 to testator's daughter, E., " and her bodily issue, and not to be subject to the debts of my daughter E.'s present or any future husband." When the will was made, E. had been dead over twelve months leaving several children then living, and this was known to the testator: Held , That by the term " bodily issue" the testator meant children; that by " and" he meant " or," and, consequently, that the children of E. were entitled to the legacy by direct gift to them.

BEFORE THOMAS, J., AT LANCASTER, APRIL TERM, 1871.

Bill in equity by H. H. Duncan and C. L. Duncan, plaintiffs against Margaret H. Harper and others, defendants, for construction of the will and settlement of the estate of William Duncan, deceased. The plaintiffs were executors of the will, and Margaret H. Harper and other defendants are children of Eliza Jane Williams, a daughter of testator, who pre-deceased him.

The will was executed and dated on the 18th of January, 1862, and the testator died in April of the same year. The disposing clauses of the will are as follows:

" Secondly. I give to my son, William G. Duncan, seven hundred and fifty-three dollars; to my son, George F. Duncan six hundred and sixty-eight dollars; to my son, John G Duncan, twenty-two hundred and twenty dollars; to my son Columbus L. Duncan, ninety-five dollars; to my son, Thomas J. Duncan, eleven hundred and thirty-two dollars; to my son, James Duncan, sixteen hundred and eighty-nine dollars; to my son, Samuel A. Duncan, eleven hundred and thirty-seven dollars; to my daughter, Sarah S. Gibson, five hundred dollars; to my daughter, Eliza Jane Williams, one thousand dollars; this one thousand dollars I give to my daughter Eliza Jane Williams, together with the negro girl Emily, which I have given her, I give to her and her bodily issue, and not to be subject to the debts of my daughter, Eliza Jane Williams' present or any future husband.

Thirdly. It is my will and desire that after the hereinbefore named sums are paid to my hereinbefore named children, and after paying all my just debts, that the balance of the proceeds of the sale of my estate, both personal and real, together with the proceeds of all notes and accounts, the ready cash, and whatever else of value I may die possessed of, shall be equally divided share and share alike betwixt my sons William G. Duncan, H. H. Duncan, George F. Duncan, John G. Duncan, Columbus L. Duncan, Thomas J. Duncan, James Duncan and Samuel A. Duncan.

Fourthly. It is my will and desire that all that I have herein given to my son Samuel A. Duncan, be received by my son James Duncan, in trust for the benefit of my said son Samuel A. Duncan, and if my said son Samuel A. Duncan shall die, leaving no child or children, the same, or the remainder thereof, shall be equally divided betwixt my sons William G. Duncan, H. H. Duncan, George F. Duncan, John G. Duncan, Columbus L. Duncan, Thomas J. Duncan and James Duncan, to share and share alike.

Fifthly. As I have, in making this my last will and testament, taken into consideration the tracts of land which I deeded to my sons H. H. Duncan and Columbus L. Duncan on the 16th day of January, one thousand eight hundred and sixty-two, in which deeds is stated that they are to account for the said land at twelve and eight dollars per acre, respectively, at the final distribution of my estate, it is my will and desire that no further account be taken thereof."

Eliza Jane Williams, daughter of testator, was dead when the will was executed. She died in Alabama over twelve months before that time, leaving seven children who were then alive, and this was well known to the testator when the will was drawn. The testator could neither read nor write, but he had a strong mind and good memory, which he retained to the last. The children of Eliza Jane Williams were parties defendant to the suit.

The question in the case was, whether the children of Eliza Jane Williams were entitled to the legacy of $1,000 bequeathed by the second clause of the will, " to her and her bodily issue."

His Honor held that they were entitled, and decreed accordingly.

The plaintiffs appealed.

Allison: The evidence that testator knew when the will was drawn that Mrs. Williams was dead was incompetent, and cannot be considered.-1 Green Ev., § 275 to § 282. But if competent it cannot control the construction-there being no ambiguity in the words of the will. The term " bodily issue," as used by the testator, is one of limitation, and not of purchase, as shown by many authorities in this State.- Thomas vs. Benton , 4 Des. 17; Sherman vs. Angell , Bail. Eq., 351; Johnson vs. Johnson , McM., 345; Reeder vs. Spearman , 6 Rich. 88; Dougherty vs. Dougherty , 2 Strob. 63; Hay vs. Hay , 4 Rich. Eq., 378; Burleson vs. Bowman , 1 Rich. Eq., 111. If Mrs. Williams had been alive at the death of testator there cannot be a doubt that she would have taken an absolute estate in the $1,000. But she was dead, and the legacy lapsed, and the money passed under the residuary clause of the will.

The Act of 1789, 5 Stat. 107, may be relied on, but it is well settled that the Act does not apply to this case.- Pegues vs. Pegues , 11 Rich. Eq., 550.

Kershaw , contra:

The points in this case are two:

First . Are the respondents entitled to the legacy in question, by virtue of the Statute of 1789? (5 Stat. 107, § 9?)

The Section is in these words: " That if any child should die in the life-time of the father or mother, leaving issue, any legacy given in the last will of such father or mother shall go to such issue, unless such deceased child was equally partitioned with the children by the father or mother when living."

The argument of Chancellor Dunkin, in Pegues vs. Pegues , 11 Rich. Eq., 550, is conclusive. He says: " The Act of Assembly of 1712, 2 Stat. 523, provided that intestate's estate should be distributed one-third to the widow, and the residue in equal proportion among the children, and such persons as legally represent such children, in case any of the said children be then dead, unless the child has been advanced. In the same manner, it is provided by the A. A. 1791, 5 Stat. 162, that if the intestate shall leave a widow and one or more children, the widow shall take one-third, and the remainder be divided between the children, (if more than one,) the issue of a decased child taking, among them, the share of their parent. A like beneficent spirit is manifested by the Act of 1789, in securing to the issue of the child of the testator the bounty which was intended for the parent. Any legacy given in the last will of a father or mother shall go to the issue of such child, if the child should die in the life-time of the parent. The Act is remedial. The object is to secure to the offspring what was given to the ancestor, but which gift could not take effect by reason of the death of the ancestor. All the legislative proceedings look to what is to be done on the death of the testator or intestate, and all mean what is expressly declared by the Act of 1712, that in case any of the children be dead, the issue of such deceased child shall take among them the share of the estate to which the parent would have been entitled, if he had survived the testator."

This reasoning of the learned Chancellor is sustained by the English Courts. The Statute of Wills, 1 Vic. 26, § 33, provides, " That where any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed, for any estate or interest, not determinable at the death of such person, shall die in the life-time of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will."

This Statute is evidently the same as our Act of 1789, but more fully expressed.

It has been determined, under this Statute, that " Feven when the death of the donee happened before the date of the will, the surviving issue take, as heirs or distributees, notwithstanding the Act is ‘ shall die,’ which has been construed to mean ‘ shall die after the passage of this Act." -2 Red. on Wills, 366.

In determining the meaning of the words of the Act, it is said by Sir James Wigram, V. C., " I am bound, as well as I can, to fix that meaning, by considering the policy of the Act and the objects it was intended to accomplish. Now, the policy of the Act and the objects it was intended to accomplish are, for the present purpose, sufficiently manifest. It was intended to prevent a portion given by testator to a child going from the estate of such child, and his family from being left portionless, by reason of the death of the child under certain circumstances, a consequence of law which the common feelings of mankind declared to be a disappointment of the intention of the father." - Winter vs. Winter , 5 Hare 306.

The verbal criticism of the Chancellor deciding the case of Pegues vs. Pegues is no answer to the force of this reasoning from the reason and spirit of the law. That case having been decided by a Court of three, O'Neall, Chief Justice, dissenting, and concurring in an opinion with Dunkin, Ch., who delivered the Circuit decree, cannot preclude the more reasonable construction by this Court.

Second . Are rospondents entitled, irrespective of the Statute? The gift is to " Eliza Jane Williams and her bodily issue ." It is said by Ch. Harper, in Henry vs. Talbird , Bail. Eq., 554, that " when a testator gives to...