Massey v. Davenport

• Decision Date: 28 September 1885
• Citation: 23 S.C. 453
• Parties: MASSEY v. DAVENPORT.
• Court: South Carolina Supreme Court

23 S.C. 453

MASSEY v. DAVENPORT.

Supreme Court of South Carolina.

September 28, 1885

A will provided as follows: " I will and bequeath unto my children, herein named, after my decease and interment and the payment of all just debts, viz., M., A., E., B., and I all my estate, real, personal, and all residue, to have, to hold, and to use for their benefit during the single life of M., A., and E., my daughters, and till my sons, B. and I are of age. I further will and devise that as the within named sons shall become of age and the daughters marry, their respective interests in possession shall revert to the daughters remaining unmarried, so long as the said unmarried daughters shall choose to remain on the premises. I further will and devise that at the majority or marriage of all the within children named, my property shall be sold and equally divided among all my children and their bodily heirs or living issue of those deceased, if any there be." Held , that the word " or" in the last sentence was used in the sense of " and," and that partition could not be demanded while A. resided on the place and remained unmarried.

Before FRASER, J., Greenville, July, 1884.

The opinion states the case.

Messrs. Stokes & Irvine , for appellants.

Mr. W. H. Perry , contra.

OPINION

MR JUSTICE MCGOWAN.

Tabitha Davenport departed this life leaving a will, which, among other things, devised as follows: " First. I will and bequeath to my children herein named, after my decease and interment and the payment of all just debts, namely, Mahala Ashmore, Amanda Davenport, Micajah Berry Davenport, Isaac Perry Davenport, and Emma Davenport, all my estate, real, personal, and all residue, to have, to hold, and to use for their benefit during the single life of Mahala Ashmore, Amanda Davenport, and Emma Davenport , my daughters, and till my sons, Micajah and Isaac, are of age. I further will and devise that as the within named sons come of age and the daughters marry, their respective interest in possession shall revert to the daughters remaining unmarried, so long as the said unmarried daughters shall choose to remain on the premises. I further will and devise that at the majority or marriage of all the within children named, my property shall be sold and equally divided among my children and their bodily heirs," & c.

The testatrix owned no property except a tract of land, and upon it the daughter Amanda resides, being still unmarried. All the children attained their majority, and two of them, the plaintiffs, instituted this proceeding for the sale and division of the proceeds of the land, alleging that the time indicated by the will for such sale and division had arrived. This was denied, and the single question was as to the construction of the will, whether it was the intention of the testatrix that the land should be sold and divided as soon as all of the children came of age, or not until the daughters were all married also . Judge Fraser held that Amanda, being still unmarried and living as a single woman upon the land, it was not as yet subject to partition, and dismissed the complaint.

The plaintiffs...