McCreary v. Coggeshall

• Decision Date: 15 March 1906
• Citation: 53 S.E. 978,74 S.C. 42
• Parties: McCREARY et al. v. COGGESHALL et al.
• Court: South Carolina Supreme Court

53 S.E. 978

74 S.C. 42

McCREARY et al. v. COGGESHALL et al.

Supreme Court of South Carolina

March 15, 1906

Appeal from Common Pleas Circuit Court of Darlington County Aldrich, Judge.

Action by James H. McCreary and others againsts A. C. Coggeshall and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Dargan & Coggeshall and Woods & Macfarland, for appellants. H. H McClelland and Spears & Dennis, for respondents.

An opinion was filed in this case on the 21st day of October 1905, but on petition for rehearing the following order was made November 2, 1905:

PER CURIAM.

Since the hearing and decision of this cause, Mr. Justice WOODS has recalled the fact, which he had entirely overlooked, that the question of the effect of section 109 of the Code of Civil Procedure of 1902 on the rights of remaindermen was involved in a cause pending in the court of common pleas in which he had been one of counsel. The views of the court on this point are not questioned in the petition for rehearing, but at the request of Mr. Justice WOODS, made for the reason above stated, the cause is opened so that argument on this point may be heard by the court without his participation. As the cause is to be reopened, counsel will be heard also on the issues referred to in the petition for rehearing.

It is therefore ordered that the cause be set down for rehearing at the November term, 1905, of this court, upon the call of the Fourth circuit.

The case was reargued at November term, 1905; Mr. Justice WOODS sitting at the request of all counsel, and the question of the effect of section 109, Code Civ. Proc. 1902, on rights of remaindermen having been withdrawn.

WOODS J.

A judgment was recovered by the plaintiffs for the possession of a tract of land containing 630 acres, and defendants appeal.

As it is necessary at every point of the discussion to have in view the precise terms of certain portions of the will of Thomas Hunter, under which both parties claim title, they are here set out in full:

"Item. I lend to my granddaughter, Mary Ann Coleman for and during the term of her natural life and no longer, all my lands situate, lying and being on Belly Ache, including George King's old place, and also Henry King's supposed to contain nine hundred acres, and also four negroes, Carolina, Sarah and her two children, and the future issue and increase of the females. It is my will and desire that my executors retain and manage the said land and negroes for the benefit of my granddaughter until she arrives to the age of twenty-one or marriage, and then to be delivered over to her; and in case my said grandaughter, Mary Ann Coleman, should die leaving issue of her body then living, then to him or her, or them so living, and to their heirs and assigns forever; but in case the said Mary Ann Coleman should die leaving no issue of her body living at the time of her death, then I give, devise and bequeath all the aforesaid land and negroes to my son, Morris W. Hunter, his heirs and assigns forever.

Item. I give, devise and bequeath unto my son, Morris W. Hunter, his heirs and assigns forever, all the rest and residue of my real and personal estate of what kind or nature soever, and wheresoever situate or being, and also, after the death of my wife, Margaret Hunter, I give, devise and bequeath all the real and personal estate hereinbefore loaned to her, to him the said M. W. Hunter, his heirs and assigns forever.

Lastly. I do hereby nominate my son, Morris W. Hunter, and my friends, Samuel Bacot and James R. Ervin, executors of this my last will and testament."

2. We have italicized the portions requiring special attention. Thomas Hunter died about 1831, leaving surviving him his children, William, Morris, and Rachel, and his grandchild, Mary Ann Coleman. Mary Ann Coleman married Samuel McCreary, and died in 1902, at the age of 90 years, leaving surviving her children, the plaintiffs, J. H. McCreary, J. A. McCreary, Susan Hawthorne, Mary McClelland, and Mattie Massey, who now claim the land in dispute as "issue of her body living" at the time of her death, under the second item of the will. We first consider the case on the assumption that there was evidence to the effect that Morris W. Hunter, one of the heirs and the residuary devisee of Thomas Hunter, acquired title to the life estate of Mary Ann McCreary, née Coleman, and that the defendants, or at least one of them, derived title to the land and possession of it through him. The defendants, taking the position that the plaintiffs took under the will a remainder contingent on surviving their mother, the life tenant, the fee being in Morris W. Hunter, the residuary devisee, pending the contingency upon which plaintiffs should take, contended, if Morris W. Hunter, owner of the fee, did acquire the life estate of Mary Ann Coleman, it became immediately merged in the fee, which he already held, and the contingent remainder, being thus left without any particular estate to support it, would be defeated. The circuit judge refused to so charge, but, on the contrary, instructed the jury the contingent remainder intervening between the life estate and the fee prevented a merger.

There can be no doubt that the limitation to the issue of Mary Ann Coleman, and, in default of such issue, to Morris W. Hunter, created a contingent remainder with a double aspect, and not an executory devise. It is said in Fearne on Remainders, 393-395: "Lord Mansfield, in the voice of the court, said it was perfectly clear and settled that, where an estate can take effect as a remainder, it shall never be construed an executory devise or springing use. And Lord Kenyon, chief justice, in delivering the opinion of the court, said, if ever there existed a rule respecting executory devises which had uniformly prevailed without any exception to the contrary, it was that which was laid down by Lord Hale, in the case of Purefoy v. Rogers, that, where a contingency is limited to depend on an estate of freehold which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder only and not otherwise. From the last noticed case, and that of Hopkins v. Hopkins therein referred to, it appears that where the contingent estate may, in the nature of its original limitation, take effect during, or by the time of the determination of, the particular estate (supposing that particular estate to take place), the possibility or probability of its not doing so, in the common course of things, or from its relation to other limitations, interposed by the testator, will not take it out of the general rule that denies the construction of an executory devise to a limitation that may take effect as a contingent remainder." This is conclusive against the contention of the respondent. A reading of the will shows that the limitation to the children of Mary Ann Coleman who survived her would take effect, if at all, at her death. Mary Ann Coleman's life estate was the particular estate to support the remainder, which could take effect immediately on its determination. Hence, under the rule stated by Mr. Fearne, it could not be an executory devise. McElwee v. Wheeler , 10 S.C. 392; Faber v. Police, 10 S.C. 376; Fearne on Rem. 373; 2 Wash. on Real Prop. 625. The residuary devise to Morris W. Hunter vested in him the fee after the life estate, with the contingent remainders limited thereon. Hopkins v. Mazyck, Rich. Eq. Cases, 263; Williams v. Kibler, 10 S.C. 414.

The general rule that a life estate is drowned or merged in the fee, when acquired by the owner of the fee to the destruction of an intervening contingent remainder, is too deeply imbedded in the common law to be now judicially questioned. Whenever this application of the doctrine of merger has been under discussion by writers on the common law, the leading case of Purefoy v. Rogers, decided in 1672, and reported in 2 Saunders, 380, in which the doctrine is laid down, has been followed. The rule is thus comprehensively stated in 2 Wash. on Real Prop. 638: "At common law there were various ways in which a contingent remainder might be defeated, by destroying the particular estate on which the remainder depended before it vested. It might be done by a feoffment or forfeiture, or by the inheritance descending upon the tenant and merging his particular estate in itself, or by the particular estate and the inheritance becoming united by conveyance or act of the parties, since the outstanding of a contingent remainder would not prevent the merging of the two; it not being an intervening estate." It is remarkable that a somewhat careful search has disclosed very few cases in American courts in which the precise point was involved. In a text-book of high rank our own case of Mangum v. Piester, 16 S.C. 316, is cited as authority for the proposition that, "where the particular estate merges in inheritance either by the act of the particular tenant or by the descent to him of the inheritance after the particular estate has taken effect, intermediate contingent remainders are destroyed."

It is true the court held in that case a life estate became merged in the remainder when it was purchased by the remainderman but the remainder there under discussion was held to be vested, and the limitation over an executory devise, and not a contingent remainder. The subject of the barring of intervening contingent remainders by merger could not therefore arise, and was neither discussed nor decided. Nor was the precise point here under consideration necessarily involved in Bouknight v. Brown, 16 S.C. 155; 170, as will be found on examination of the facts of the case; but in the course of the discussion the court uses this language: "A contingent...