Lane v. Dillon

• Decision Date: 19 May 1915
• Docket Number: (No. 9109.)
• Citation: 85 S.E. 369,101 S.C. 196
• Parties: LANE. v. DILLON et al.
• Court: South Carolina Supreme Court

85 S.E. 369

101 S.C. 196

LANE.

v.DILLON et al.

(No. 9109.)

Supreme Court of South Carolina.

May 19, 1915.

Appeal from Common Pleas Circuit Court of Dillon County; John S. Wilson, Judge.

Action by R. L. Lane against T. A. Dillon and another. From judgment for defendants, plaintiff appeals. Reversed.

L. D. Lide, of Marion, and Jos. P. Lane, of Dillon, for appellant.

J. W. Johnson, of Marion, and Gibson & Muller and N. B. Hargrove, all of Dillon, for appellees.

HYDRICK, J. In separate paragraphs or items of their will, testators devised certain lands to each of their children by name, "and the heirs of his body." The devise to plaintiff's grantor, omitting the description of the land, reads:

"Item. We give and devise to our beloved son, Benjamin F. McDaniel, and the heirs of his body, thirty acres, " etc.

The others are in the same language, except the name of the devisee and description of the land devised.

Following these devises, but in a separate paragraph, are these words:

"To have and to hold during the term of their natural lives, then to go to the heirs of their bodies."

About a year after the execution of the will a codicil was added, the material part of which reads:

"Item. That the land given and bequeathed in our first will and testament to our son, James A. McDaniel, Jr., and the heirs of his body, we do hereby give and bequeath unto him with full power to himself to dispose of it, if he may so elect, and the better to enable him our said son, James A. McDaniel, Jr., to dispose of the same to his own benefit and advantage, we have this day given him a deed for the same."

Having children, B. F. McDaniel conveyed the land devised to him in fee simple to plaintiff. His children, being advised that he had only a life estate, conveyed the remainder to J. W. Dillon & Son, under whom defendant T. A. Dillon claims it, after the death of B. F. McDaniel, who is still living.

The question is: What estate did B. F. McDaniel take under the will? The defendant Dillon relies upon the clause of the will above quoted, which, for brevity, is called the habendum, and the codicil, to show an intention that each devisee should take only a life estate with remainder to the heirs of his body as purchasers.

The habendum does show the intention that each devisee shall take only a life estate. It says so plainly. But, in equally plain terms, the remainder is limited to "the heirs of their bodies." The word "their, " in this clause, evidently refers only to the...