McFadden v. McFadden

• Decision Date: 29 March 1917
• Docket Number: 9663.
• Citation: 91 S.E. 986,107 S.C. 101
• Parties: MCFADDEN v. MCFADDEN ET AL.
• Court: South Carolina Supreme Court

91 S.E. 986

107 S.C. 101

MCFADDEN v. MCFADDEN ET AL.

No. 9663.

Supreme Court of South Carolina

March 29, 1917

Appeal from Common Pleas Circuit Court of Clarendon County; Geo. E Prince, Judge.

Suit by C. F. McFadden against Lena E. McFadden and others. From a decree, plaintiff appeals. Reversed.

The following is the decree of trial court:

This is a suit for specific performance on the part of the plaintiff against Lena E. McFadden, in which other parties claiming interest in the land are made parties. Lena E McFadden refuses to purchase, alleging that the plaintiff cannot give a good and marketable title to the premises. The land in question was derived by the plaintiff under the second clause of the last will and testament of his father William J. McFadden, deceased. The following quotations from the will are necessary for a determination of the questions arising in this case:

Item 2. "I give, devise and bequeath to my son, Charles Fishburn McFadden, and my wife Elizabeth J. McFadden, that tract of land whereon my dwelling house and store is situated, to be surveyed so as to contain three hundred and thirty-five acres. Now it is my will and devise for my wife Elizabeth J. McFadden, to live in my present dwelling during her natural life and to enjoy all the rents, profits and issues of said tract of land, 335 acres, as long as she remains my widow and no longer, and at her death said lands to go to my son, Charles F. McFadden. Should he die without leaving legal issue his share of land must be divided equally between my other children, share and share alike, except my daughter, Mrs. Butler Du Bose."

Item 8. "It is my wish and desire that my children enjoy the privileges of my plantation whilst single and disposed to be peaceful. I further desire and wish should any of my children die leaving no issue, said property herein mentioned shall revert back, and become the property of my estate to be divided equally between my heirs with the exception of Mrs. Bertha Du Bose."

In other clauses of said will, the other children of the testator except Mrs. Du Bose are given portions of the real estate of the testator without any life estate intervening.

I find that at the time of the making of the will and until his death, the testator, and his daughter, Mrs. Du Bose, were estranged, and the same was true as to her children in esse.

When this cause came on to be heard, the attorneys announced that, if the Du Bose children, Anglo Du Bose, Fleetwood Du Bose, and Mabel Stoudemire, should be found to be excluded from any possible interest in the said land, the other parties had already agreed among themselves to a settlement of their various contentions respecting not only this tract of land, but other portions passing under said will, and it would be very much in the interest of harmony and to the quieting of litigation to have a special decree, deciding the sole question as to whether or not under any possible construction of the will the Du Bose children could take. I am therefore passing only upon this question, as no other question has been argued or submitted to me.

If the second clause in the will were the only one to be considered, it is plain that only the children of the testator could take in any contingency; and as the Du Bose children above mentioned are not children, but grandchildren of the testator, they would be excluded. But as to the eighth clause of said will, if it were to be subsequently decreed that the word "heirs" therein used is to be taken in its technical sense, and if the reversion and distribution therein mentioned should be fixed by said subsequent decree as referring to the death of C. F. McFadden at any time, without leaving issue, then I hold that under such a construction the said Du Bose children, if their mother were then dead, would not be barred, but would take as purchasers in case of the happening of the contingency; that is to say, if C. F. McFadden should die leaving no issue.

R. D. Epps and Raymon Schwartz, both of Sumter, for appellant.

Purdy & O'Bryan, of Manning, for respondents.

GARY C.J.

This is an action for specific performance, and the appeal involves the construction of a will. The facts are fully stated in the decree of his honor the circuit judge. The vital question in the case is whether the rights of the "heirs" are to be determined with reference to the time of the testator's death, or the death of his respective children...