Jarecky v. Jarecky

• Citation: 9 S.E.2d 922,194 S.C. 456
• Decision Date: 08 July 1940
• Docket Number: 15120.
• Parties: JARECKY v. JARECKY.
• Court: United States State Supreme Court of South Carolina

9 S.E.2d 922

194 S.C. 456

JARECKY v. JARECKY.

No. 15120.

Supreme Court of South Carolina

July 8, 1940

L Marion Gressette, of St. Matthews, for appellant.

W R. Symmes, of St. Matthews, for respondent.

L. D LIDE, Acting Associate Justice.

Morris Jarecky executed his last will and testament, dated January 26, 1918, the pertinent portion of which is as follows "To my daughter, Hennie, I bequeath the sum of four thousand dollars in cash, and the property on Railroad Avenue, St. Matthews, S. C., containing two stores between stores now occupied by Fair's Pharmacy and Banks & Wimberly during the period of her life and after her death to her heirs."

The testator died shortly thereafter, and on March 11, 1918, the will was duly admitted to probate in Calhoun County. Henrietta W. Jarecky, the respondent above named, is the testator's daughter, Hennie, mentioned in the quoted excerpt. She conveyed the real estate therein devised to her to Henru Land and Investment Company, taking back a mortgage for the credit portion of the purchase price. The mortgage was not paid, and suit was brought for the foreclosure thereof. Pursuant to the decree for foreclosure and sale the property was sold at public auction on salesday in December, 1939, by the Special Referee to A. H. Jarecky, the appellant above named, at and for the sum of $7,500, but the purchaser refused to comply with his bid, on the ground that Henrietta W. Jarecky took a life estate only under the will of her father, Morris Jarecky, and that hence he would not acquire a marketable title. A rule in due course was issued by the Court requiring the purchaser to show cause why he should not be compelled to comply with his bid, and upon the return to the rule Honorable G. Dewey Oxner, Presiding Judge, held that under the paragraph above quoted from the will of Morris Jarecky his daughter, Henrietta W. Jarecky, took a fee simple title by virtue of the rule in Shelley's Case, and A. H. Jarecky was directed forthwith to comply with his bid. The cause comes to this Court upon an appeal from the order of Judge Oxner.

This appeal was obviously taken in the superabundance of caution, because the plain and explicit language contained in the will provides a typical instance for the application of the rule in Shelley's Case; that is to say, there is a devise of a life estate with remainder over to the heirs of the life tenant, without qualification or superadded words.

This time honored rule has often been defined and much discussed. A very clear and admirable definition is that given by Chancellor Harper in the case of Williams v. Foster, 3 Hill 193, where he says: "By the rule in Shelley's case, which has been an admitted and established rule of law for centuries, and the wisdom of which is more approved as it is better understood, it was determined that if an estate of freehold 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 taking the freehold, and he takes an estate in fee or in tail, according to the terms of the limitation. This is an arbitrary rule of law unconnected with and independent of the donor's or testator's intention."

This case has been frequently cited, and the foregoing definition was quoted with approval in the quite recent case of Hutto v. Ray, 192 S.C. 364, 6 S. E.2d 747. If the language contained in the will of Morris Jarecky is construed in the light of the rule as thus defined it will be seen that an estate of freehold, that is to say, a life estate, was given to Henrietta W. Jarecky, and a remainder was thereon limited to her heirs; and hence the remainder was immediately executed in possession in Henrietta W. Jarecky, so that she took the whole estate...