Magee v. O'neill

• Decision Date: 17 April 1883
• Citation: 19 S.C. 170
• Parties: MAGEE v. O'NEILL.
• Court: South Carolina Supreme Court

19 S.C. 170

MAGEE

v.O'NEILL.

Supreme Court of South Carolina.

Apr. 17th, 1883.

1. Whether a child has been reared in the faith of the Roman Catholic Church is an inquiry susceptible of judicial ascertainment.

2. A testator bequeathed a fund to trustees, the income whereof was to be appropriated to the maintenance and education of his granddaughter, then an infant, “provided she is educated in some Roman Catholic female seminary, or school, and is raised as a Roman Catholic, in the faith and communion of her deceased father,” the whole amount to be paid to her at her majority or marriage, freed from all trusts; but, if she “is not educated in a Catholic seminary or school, or raised as a Roman Catholic, in the faith of the Roman Catholic Church, then” to testator's daughters. Held, that the words here used created a conditional limitation.

3. Neither the inadequacy of the interest to defray the expenses of an education at such a school, nor the infancy of the granddaughter, rendered the condition so impossible as to defeat the conditions imposed.

4. A sum out of this fund having been offered by the trustees to the mother to maintain her daughter at a Roman Catholic school for some months, and declined, the condition cannot be disregarded upon the ground that it could not be performed, at least in part, however limited the mother's own means may have been.

5. The condition was not void, as being in contravention of public policy.

6. The constitutional provisions which prohibit the establishment of any one denomination of Christians protect each and all in the peaceable enjoyment of its own mode of worship; instead of renouncing all religious denominations, they protect all.

7. The granddaughter not having been educated in a Roman Catholic school, or raised as a Roman Catholic, in the faith of the Roman Catholic Church, the fund, at her majority, became vested in testator's daughters, under the terms of his will.

Before HUDSON, J., Charleston, December, 1881.

The Circuit decree in this case, omitting its statement of facts, which are fully set out in the opinion of this court, was as follows:

In the second of the exceptions, according to the order in which they are stated, and in which it is said that there is error in the conclusion of law, that it cannot be judicially ascertained whether Mrs. Magee (the plaintiff) was or not reared in the faith of the Roman Catholic Church, the judgment of the court is that in this there was error, and the exception is sustained.

The remaining exceptions are that the conclusions of law are error when they declare that the conditions already stated are to be held as subsequent, and that the testator intended to create them as conditions precedent; that the referee erred in his conclusion that the estate or interest in the legacy is to be construed as if no such conditions had been attached thereto; that the conditions set forth in the will had never been fulfilled, and the legacy never vested; that if considered as conditions subsequent, they have never been and cannot now be complied with; and that the estate limited over upon the fulfillment of the condition, the evidence being that the condition has not and cannot be now fulfilled, takes effect.

These, then, are the questions upon which the judgment of this court is asked and now stated. Are these conditions to be considered as conditions precedent or subsequent, and, in either view, to be considered as conditions which this court will enforce, either to require performance before vesting the legacy, or subsequent to divest it, if not performed. And the judgment of the court is that upon the point whether they will be considered as conditions subsequent or precedent, they must be held as conditions subsequent; and next, that they are inoperative as conditions subsequent to divest the interest in the legacy. The non-performance of them cannot affect the right of Elizabeth Magee (now Harris) to the legacy in question.

It must be presumed that the relationship which existed between the testator and this infant of very tender years would prompt him to make the provision he did, as a bounty to her, who stood in that close connection of the only child of his deceased and only son. It would not be consistent with any natural feeling that another motive should either prompt or control him in what he did. He gives it to be appropriated “to the maintenance and education of my grandchild, Elizabeth Magee, the daughter of my deceased son.” She was then not yet three years of age. Her “maintenance” was to be provided for, and that “maintenance,” under any circumstances, he intended to be provided for; but her age required provision for her “maintenance” before her education could commence. And provision for that “maintenance” can only be carried out if the interest in the legacy was vested at the death of the testator.

The application of the income to her “maintenance” was, at least, as positive as that relating to her “education”-under the circumstances it was more pressing, and could only be fulfilled if the interest in the legacy was vested. Her education might be postponed for years, but the obligation of the testator to his grandchild was recognized by him in the provision for her maintenance. To affirm that, no matter how severe and pressing might be or was the need for applying this income to maintenance, it should be deferred until the need for education should arrive, would be to reject the motive which, it may be well supposed, prompted the provision, and subject it to a motive which would be hard and cruel.

In this case it will be seen that the position of the testator's estate, which he intends for the benefit of his granddaughter, is distinctly separated from the rest of his estate. “One-twentieth part” is so set apart and given to these trustees for the “maintenance and education” of his grandchild, the plaintiff. The severance is not postponed; it is at once done, and the purpose of that severance is at once declared to be for the “maintenance and education” of a child, then of very tender years; and one, the most immediately present of these declared purposes for which this provision had been made, was in its nature such that it would require the interest to be vested in order that the purpose might be accomplished. Without extending further this part of the case, by reference to the decisions cited in argument to support it, it is the judgment of the court that the conditions set forth in the will of John Magee, connected with this legacy to the plaintiff, are conditions subsequent, and the exceptions are on this point overruled.

The nature and effect of these conditions, because of non-fulfillment, to divest that interest, will now be considered. The question of performance of these conditions as subsequent, and, if valid as such, divesting an interest vested, may be considered in two views: First. Can the plaintiff, Elizabeth Magee, now Harris, be required to forfeit her interest because they have not been complied with or performed? Second. Are they such conditions as will be recognized as proper to be enforced?

The testimony of the trustees is very explicit on this point that the provision made for the grandchild did not admit in itself of the performance of the condition. In the reply to the letter of the mother, the trustees plainly state that the income was not sufficient to admit that to be done which it is contended should be done, or, if not done, that this legacy shall be lost to the plaintiff. That compliance, therefore, with the conditions was impossible, because the provision made for it was wholly inadequate, is simply to state the proposition that a bequest which is valid and was vested may be divested because of that not being done which the testator himself made impossible of performance. In a case inter vivos a donor or grantor could not claim to have a gift or grant in the enjoyment of the donee or grantee avoided, because of the omission to do that the doing of which had been rendered impossible by the act of such donor or grantor. And the rule would apply as well to a bequest or devise, and operate on those who, by deed or will, claim under the donor, grantor or devisor.

But there are objections to the enforcement of these conditions to divest the interest of the plaintiff so strong that they cannot but prevail. The mother of this child, the surviving parent, is not attached to the faith of the Roman Catholic Church. She is a member of a church entertaining religious views which differ widely from those inculcated in the Roman Catholic Church. She cannot be the proper person to rear her child in the belief of the Roman Catholic Church. With her religious opinions it may well be assumed that to undertake such a duty would be a very great wrong. To rear this child as she then was in the faith of the Roman Catholic Church would involve the separation of the child from the mother; the custody and care to be taken from the mother and transferred to those whose religious faith was that in which it is said this child was intended to be reared. And this, then, is the separation of the child from the mother-the relinquishment of the highest duty which is connected with the domestic relations, and the parting asunder of ties than which none are stronger or even more sacred in human life.

In the consideration of this part of the case, it would be only necessary to change the terms of this condition, and suppose that this was the child of a mother who was a member of the Roman Catholic Church, and the condition annexed to a legacy like this was that the child should turn from the care and religious teachings of its mother, from attending religious worship with its mother, and conform itself to other teachings wholly different from its mother's; that involving a separation in all things from its mother, would it not be considered as the greatest of wrongs to that mother and that child?...