Lawrence v. Burnett

• Decision Date: 30 April 1918
• Docket Number: 9963.
• Citation: 96 S.E. 144,109 S.C. 416
• Parties: LAWRENCE ET AL. v. BURNETT ET AL.
• Court: South Carolina Supreme Court

96 S.E. 144

109 S.C. 416

LAWRENCE ET AL. v. BURNETT ET AL.

No. 9963.

Supreme Court of South Carolina

April 30, 1918

Appeal from Common Pleas Circuit Court of Spartanburg County; T. J Mauldin, Judge.

Action by Enoch Lawrence and others against Gertrude D. BurnettWade P. Gowan, and others, involving the construction of a will.Judgment for plaintiffs, and defendant Gowan appeals.Reversed and remanded.

R. B Pasley, of Spartanburg, for appellant.

Carson, Boyd & Tinsley, Nicholls & Nicholls, I. A. Phifer, and J. C. Wrightson, all of Spartanburg, for respondents.

HYDRICK J.

This is an action for partition of 185 acres of land.The defendantWade P. Gowan claimed 62 acres of the tract in severalty, and, failing in that, he claimed an undivided two-sevenths interest in said 62 acres.His claims are based upon these facts:

William Gowan, the common source, had seven children, among them a son, Simeon, and a daughter, Nancy Bishop.In 1867he executed (except delivering) a deed to Simeon to 198 acres by way of advancement, to be accounted for at $400 on settlement of his estate.The granting and habendum clauses read:

"I do hereby convey and deed and release unto my son Simeon, the above lands during his natural lifetime, and at his death to pass to his wife during her widowhood, at her death or marriage to another, if the said Simeon should die without child, then and in that case, when his widow should die, or marry, the lands to pass back to my estate as a portion of the same.To have and to hold all and singular the rights and titles as before mentioned unto the said Simeon and his children, if he has any, and if not the land to pass back to my estate as above stated."

In 1876 William made his will, which contains the following provisions that are pertinent to this inquiry:

"Item 4.* * * My executors will divide my estate among my children and grandchildren in equal shares, as follows:

Item 5.I give my son, Simeon Gowan, 1 share, including four hundred dollars already advanced to him in land."

"Item 12.When my estate comes into the hands of my executors, I will that they deliver the titles already executed by me to the four hundred dollars worth of land advanced to Simeon, Nancy and Thomas (the titles now being in my possession)."

In 1878 William executed two other deeds to Simeon, conveying parts of the same tract.One was a deed to 12 1/2 acres, which was delivered and recorded.The other was a deed to the residue, 185 1/2 acres, which was a copy of the deed of 1867, except the description of the land.This deed, like that of 1867, was not delivered, but was kept by William, and after his death both deeds were delivered to Simeon, pursuant to the directions of testator in item 12 of the will.In 1879 William added a codicil to his will, but made no change in the devise to Simeon, and died in the latter part of the same year.In 1885 Simeon mortgaged 62 acres of the 185-acre tract, and appellant acquired title from the purchaser at the sale for foreclosure.In 1897Nancy Bishop executed the following assignment to appellant of her interest in the 62 acres:

"State of South Carolina, Spartanburg county--We, the undersigned parties named, do hereby sign all our right, title and interest which we have, or may hereafter have in one lot or parcel of 61 acres of land, to W. P. Gowan, his heirs or assigns.The said lot or parcel of land is the same piece and parcel of land which W. P. Gowan now owns, the same shall be binding on ourselves, our heirs, executors and administrators.

Dated December 9, 1897."

"N. N. Bishop."

Nancy predeceased Simeon, who died in 1909, without having had a child.At Simeon's death his widow took possession of the 185-acre tract, including the 62 acres theretofore held by appellant, and retained possession until her death.Appellant contends that, under item 5 of the will, Simeon took the fee, and therefore his title to the 62 acres under the foreclosure sale is good; and, if not, that Simeon took only a life estate, and the remainder, being undevised, descended to the heirs of William at his death and Simeon inherited one-seventh, which he acquired under the foreclosure sale, and Nancy Bishop one-seventh, which he acquired under her assignment.The court held that the limitation contained in the deeds of 1867 and 1878 was incorporated into the will by reference, and construed it as a fee conditional.It followed that, as Simeon never had a child, the condition was not performed, and the remainder reverted to those who were heirs of William at Simeon's death, and therefore that appellant took nothing either from Simeon or Nancy.

Appellant's contention that Simeon took the fee under the fifth item of the will would be sound if the estate devised were determinable solely by the words of the will.But the court correctly held that it must be determined by the limitation in the deeds, which was made part of the will by reference ( Johnson v. Clarkson, 3 Rich. Eq. 305, 314), and that the codicil of 1879 was a republication of the will, and made good the reference to the deed of 1878.Rose v. Drayton, 4 Rich. Eq. 260.

But the court erred in construing the limitation in the deeds as a fee conditional.It was necessary to that conclusion to construe the words "child" and "children" to mean "heir of his body" and "heirs of his body."No doubt that may be done when the will, as a...