First Carolinas Joint Stock Land Bank v. Deschamps

• Decision Date: 22 January 1934
• Docket Number: 13760.
• Citation: 172 S.E. 622,171 S.C. 466
• Parties: FIRST CAROLINAS JOINT STOCK LAND BANK v. DESCHAMPS et al.
• Court: South Carolina Supreme Court

172 S.E. 622

171 S.C. 466

FIRST CAROLINAS JOINT STOCK LAND BANK v. DESCHAMPS et al.

No. 13760.

Supreme Court of South Carolina

January 22, 1934

Appeal from Common Pleas Circuit Court of Lee County; Philip H Stoll, Judge.

Suit by the First Carolinas Joint Stock Land Bank against Zelene Gray Deschamps and another, minors, by their guardian ad litem. Decree for defendants, and plaintiff appeals.

Affirmed.

The decree and judgment of Judge Stoll in the court below is as follows:

This case comes before me upon the pleadings, the report of the special referee, and the testimony taken by him. The order of reference provided only for the taking of the testimony by the referee.

I find that the infant defendants were properly served and answered the complaint by their duly appointed guardian ad litem.

The controversy in this case centers around the construction of a trust deed executed by W. W. Deschamps the 10th day of January, 1899, and recorded in Sumter county in Book MMM page 266. There is no dispute as to the facts involved. It appears, and I so find, that W. W. Deschamps, after the execution of the above-mentioned trust deed, departed this life in the year 1921, leaving of force his last will and testament probated in Lee county, and which will be referred to later. He left surviving him the following children: Edgar G. Deschamps, William G. Deschamps, Carroll G. Deschamps, Sue D. McLeod, Lidie D. Calhoun, and Blanche G. Deschamps. His daughter Lottie predeceased him without children. All of these children have children living except Blanche G Deschamps.

In the division of the real estate of W. W. Deschamps after his death, the real estate covered by the above-mentioned trust deed was allotted unto Carroll G. Deschamps, Lidie D Calhoun, and Sue D. McLeod. Subsequently Carroll G. Deschamps mortgaged the tract of land allotted to him and covered by the above-mentioned trust deed, to the first Carolinas Joint Stock Land Bank. This mortgage was later foreclosed and the land conveyed by proper officer of the court to the said bank. A contention having arisen as to the estate of Carroll G. Deschamps in the property mortgaged, it being contended that Carroll G. Deschamps only had a life estate in said property with remainder to his children, the plaintiff brought this suit against the children of Carroll G. Deschamps for the purpose of removing the alleged cloud from the title. The property in question being a part of the land described in said trust deed, it is necessary to construe the same in order to determine what title, if any, the children of Carroll G. Deschamps received under the provisions of the same.

The grantor states in said deed that the same is executed for the purpose of providing for his children and grandchildren, the clause being as follows: "In consideration of the sum of ten dollars to me in hand paid by William B. McLeod as Trustee (the receipt whereof is hereby acknowledged), and in consideration of the desire on my part to provide for my children and grandchildren, have granted, bargained etc."

After providing that the trustee is to permit W. W. Deschamps' grantor to occupy and use the premises for life, or until an attempt should be made to subject the premises or the income and profits therefrom to the payment of any debt of W. W. Deschamps, the trust deed provides that upon the death of W. W. Deschamps or upon the attempt to subject the premises to his debts, the trustee should stand seized and possessed of the same: "To and for the use and benefit for life, of Edgar Green Deschamps, Alice Blanche Deschamps, Lottie M. Deschamps, William G. Deschamps, Lidie Lee Deschamps, Sue Brown Deschamps, and Carroll Deschamps, my children now living with remainder upon the death of any or either of them to the issue of his, her or their body or bodies and their heirs and assigns forever; and in the event of the death of any of my children above named without issue alive then the share of such child or children so dying without issue to immediately vest in the survivor or survivors of my said children hereinbefore named."

The plaintiffs contend that the rule in Shelley's Case applies the word "issue" being used in the sense of all future generations, and that Carroll G. Deschamps took a fee conditional under the limitations of this deed, and that inasmuch as he had children living at the time he executed the mortgage to the plaintiff, he could convey a fee-simple title, and that therefore the defendants have no interest. The defendants contend that the rule does not apply.

It appears to be certain that the grantor intended to give to Carroll G. Deschamps only a life estate. To hold otherwise would defeat practically every provision in the deed. To begin with, the grantor states explicitly, that the deed is executed for the purpose of providing for his children and grandchildren. This will not be done by giving the children a fee conditional, because upon the birth of children the land could immediately be mortgaged or aliened, and the grandchildren deprived of any protection. That is what happened in this case.

To show that the grantor did not mean all future generations by the word "issue," one of the provisions of the deed is as follows: "And upon the Further Trust, that upon the written direction of myself, the said W. W. Deschamps, to set off to any of my children hereinbefore named or to any of their said issue such part or parts of the above described premises as I wish allotted to them under the terms of this deed; and upon The Further Trust, to make such allotment as I may direct by my last Will duly executed, should I fail to make such written direction during my lifetime." This shows that the grantor had in mind that some of his children might die before he did leaving children, and that in such case when he divided the land, either by written instrument during his lifetime or by his will, he intended to allot to such issue of any deceased child that portion of the premises that he intended them to have after his death as the representatives of their parent. W. W. Deschamps having reserved the use of the premises as long as he lived, it was a very natural desire to reserve the right to determine the manner in which it should be divided. This provision shows conclusively how he intended to provide for his grandchildren and would be absolutely defeated by holding that his children took a fee conditional estate under the deed. If they took such an estate, the grantor could allot nothing to their issue. How, then, can it be contended he used "issue" in a technical sense? If the grantor instead of saying, as he did, that in order to provide for his children and grandchildren, he was giving a life estate to his children with remainder to their issue, had said that in order to provide for his children and their issue he was giving a life estate to his children with remainder to his grandchildren, no one would say that "issue" was used in a technical sense. But the meaning is just as clear expressed as it is.

The purpose of the grantor being clear, it is now necessary to determine whether or not there is any principle of law that would defeat this intention.

The limitation to the children with remainder to their issue standing alone without reference to other parts of the deed certainly would convey a fee conditional to the children under the rule in Shelley's Case. Austin v. Payne, 8 Rich. Eq. 10; McIntyre v. McIntyre, 16 S.C. 292. But the word "issue" was certainly not used in a strictly technical sense. Other parts of the deed show this conclusively, and the court will look to the entire deed to obtain the intention as to the meaning of the words used.

Before citing authorities, it might be well to dispose of the point that the rule in Shelley's Case is a rule of law and will be applied even where it defeats the intention. That is true only in a restricted sense. For example, if a grantor should limit an estate to A for life with remainder to the heirs of the body of A, the rule would apply and A would have a fee conditional estate, because apt words were used to create such an estate and even though the grantor went so far as to state elsewhere in the instrument granting the estate that he did not intend for the rule to apply in any construction of the will. But if, after using such words to limit an estate, the grantor should say that wherever the words "heirs of the body" were used in the instrument he meant "children," then the court would carry out the intention and substitute "children" for "heirs of the body," and the rule would not apply because apt words had not been used to bring about the application of it, and of course if the intention is clear from the wording of the entire instrument that the grantor used the words in a sense different from the technical meaning even though he does not say so, the technical words will be construed to mean what the testator intended for them to mean and the rule is not applied.

In Duckett v. Butler, 67 S.C. 130, 45 S.E. 137, the limitation in the trust deed was as follows: "In trust for the sole, separate and exclusive benefit and behoof of Sarah Eliza Butler, daughter of the said William Moses Butler, for and during the term of her natural life, and at her death to such heir or heirs as she hereafter may have. But in the event of the death of the said Sarah Eliza Butler and in the event of her leaving no lawful issue, then and in that case the said land to be legally distributed between the lawful heirs of the said William Moses Butler." The court held: "The use of the word 'hereafter' was natural and proper to show that by 'heir or heirs' the grantor intended child or children. *** And so, in reference to the use of the words 'lawful...