Holder v. Melvin

• Decision Date: 06 January 1917
• Docket Number: 9572.
• Citation: 91 S.E. 97,106 S.C. 245
• Parties: HOLDER v. MELVIN ET AL.
• Court: South Carolina Supreme Court

91 S.E. 97

106 S.C. 245

HOLDER v. MELVIN ET AL.

No. 9572.

Supreme Court of South Carolina

January 6, 1917

Appeal from Common Pleas Circuit Court of Lexington County; J. W. De Vose, Judge.

Action by J. H. Holder against Willie W. Melvin and others. Decree for the defendants, and plaintiff appeals. Reversed and remanded.

J. Wm Thurmond, of Edgefield, for appellant.

Sheppard Bros., B. E. Nicholson, and S. M. Smith, all of Edgefield for respondents.

GARY C.J.

This is an action for specific performance, and involves the construction of a deed dated the 4th of May, 1871, the provisions of which are as follows:

" Know all men by these presents that I William H. Mays, * * * for and in consideration of the sum of five dollars, to me in hand paid by James M. Holder, * * * (the receipt whereof is hereby acknowledged), hath granted bargained, sold, released, and conveyed * * * unto the said James M. Holder, in trust, for his wife Sarah F. W. Holder and her children, all that tract or parcel of land * * * to have and to hold all the above described premises in fee, as trustee for his wife * * * and her children, the said James M. Holder to use, control, and cultivate the said premises for the use of his wife and her children, during the life time of his said wife * * * and at her death to go to her children."

Then follows the clause of warranty against himself, his heirs and assigns, unto the said James M. Holder, trustee, and against all other persons. The plaintiff (who is the only grandchild of Mrs. Sarah F. W. Holder, his father, Oscar Holder, her only child, having predeceased her) claims that he owns the said land in fee. His honor the circuit judge ruled that the plaintiff had no interest whatever in the land; that the land reverted to the estate of the grantor. The plaintiff appealed from the decree of his honor the circuit judge.

The rule for the construction of trust deeds, is thus stated in McMichael v. McMichael, 51 S.C. 555, 29 S.E. 403:

"The technical rules of the common law make it essential to the creation of an estate in fee simple in a natural person by deed, that there be in the deed an express limitation to such person and his 'heirs.' * * * An exception to this rule is recognized in this state, in the case of trust deeds, where the purposes of the trust require that the trustee, or cestui que trust, shall take an estate of inheritance, in which case the word 'heirs' is not essential to create such an estate. A court of equity, in its jurisdiction over trusts, not being bound by the technical rules of the common law, will seek the intention of the grantor from the whole instrument; and if it contains other words than 'heirs,' indicating an intention to convey a fee simple, may so declare the intent in order to effectuate the trust."

This language is quoted with approval in McMillan v. Hughes, 88 S.C. 296, 70 S.E. 804.

Stated in another form, the rule which has been adopted in this state is thus expressed in section 312 of Perry on Trusts:

"The extent or quality of the estate taken by the trustee is determined, not by the circumstances that words of inheritance in the trustee are or are not used in the deed or will, but by the intent of the parties. And the intent of the parties is determined by the scope and extent of the trust. Therefore the legal interest of the trustee in an estate given to him in trust is measured, not by words of inheritance or otherwise, but by the object and extent of the trust, upon which the estate is given. On this principle, two rules of construction have been adopted by courts: First, wherever a trust is created, a legal estate, sufficient for the purposes of the trust, shall, if possible, be implied in the trustee, whatever may be the limitation in the

instrument, whether to him and his heirs or not. And second, although a legal estate may be limited to a trustee to the fullest extent, as to him and his heirs, yet it shall not be carried further than the complete execution of the trust necessarily requires."

In Sullivan v. Moore, 84 S.C. 426, 65 S.E. 108, 66 S.E. 561, the court, in discussing the proposition that the deed, with the word "heirs" being omitted, conveyed only a life estate, and that upon the death of the life tenant there was a reversion, used this language: "This is the rule of the common law from which the courts cannot escape, though its operation nearly always results in the injustice of defeating the intention of the parties. The rule serves generally as a snare to those unlearned in technical law, and it would be difficult to suggest any reason for its continued existence; but it has been so long established in this State that the Courts cannot now overrule the cases laying it down without imperiling vested rights."

Such being the effect in the application of the common-law rule, the courts, in the exercise of their chancery powers, are inclined to follow the equitable rule, whenever it is doubtful whether the word under construction is a word of inheritance. Accordingly, in Duncan v. Clarke, 90 S.E. 180, where the construction of a trust deed was involved, it was held that the word "issue" was used in the sense of "children," so as to give effect to the purposes of the trust, although "issue" is a word of limitation, unless the language of the deed indicates that it was intended as a word of purchase. Williams v. Gause, 83 S.C. 265, 65 S.E. 241.

Before proceeding to construe the deed herein, it may be well to determine the following questions: Can the statute execute the use, when the deed contains an active trust? Is the provision in the deed that the land was to go to the children, after the death of their mother, to be determined by the common-law or equitable rule? In Hunt v. Nolen, 46 S.C. 356, 24 S.E. 310, lands were conveyed by deed to a trustee, for the use of Mrs. Cynthia Dupreest, during her natural life, and after her death to the use of her husband, if he survived, during his natural life, and at his death to be equally divided among the children of Cynthia Dupreest. Then, after stating the life estates substantially as above, these words were added:

"Then to go absolutely to the children of the said Cynthia Dupreest absolutely, share and share alike."

In deciding that case, his honor the circuit judge used this language:

"Another essential difference between the case at bar and those cited by counsel for defendants is that the estate conveyed to the children, and now owned by Dr. Cleveland, was not equitable, but a legal estate. If they take all under the deed, they take a legal title to the land as purchasers. There was no trust as to them. The trust expired with the [death of the] surviving parent. Dr. Cleveland's title is just the same as it would be if H. H. Thomson, instead of making the trust deed had conveyed the premises directly to Julia Dupreest and the other children, naming them."

The Supreme Court, however, did not adopt this construction of the deed. There was a petition for a rehearing in that case, on the ground that the court had overlooked the following essential difference between the facts of that case and those in Fuller v. Missroon, 35 S.C. 314, which ground was, in substance, the same as that upon which his honor the circuit judge relied:

"There the trust continued, while here it died with the life estate; that in the case of Fuller v. Missroon, the estate given to the remaindermen was in the inception an equitable estate, while here the estate given to the remaindermen was not at any moment an equitable one; that they took by purchase a legal estate; and that the trust had no relation to them. They, therefore, contend that the liberal rules which courts of equity exercise, to ascertain and carry out the intention of the grantor, cannot be overlooked in this case, and that there are no words of inheritance in the deed sufficient to pass the title in fee to the land."

In disposing of that ground for a rehearing, this court said (46 S.C. 551, 24 S.E. 544):

"The grantor intended that the deed should convey the entire estate, and the words used in connection with the children of Mrs. Dupreest show his intention that they should have all the remainder of the estate, after the falling in of the preceding life estate of Mrs. Dupreest and her husband. No other construction would carry out the purpose of the trust."

The petition for a rehearing was therefore dismissed. In section 300 of Perry on Trusts, it is said:

" The statute may execute the use in regard to one party, and not as to another in the same deed; for example, where land is conveyed to A. in trust for B. for life, contingent remainder to C., the statute may execute the life estate in B. and still leave the fee in A. for the preservation of the remainder."

The...