Mcintyre v. Mcintyre

• Decision Date: 21 November 1881
• Docket Number: CASE No. 1118.
• Citation: 16 S.C. 290
• Parties: MCINTYRE v. MCINTYRE.
• Court: South Carolina Supreme Court

16 S.C. 290

MCINTYRE

v.MCINTYRE.

CASE No. 1118.

Supreme Court of South Carolina.

Nov. 21st, 1881.

1. The intention of the testator must prevail when not in conflict with some rule of law.

2. In this State, the rule in Shelley's Case does not apply, where the word issue after a precedent life-estate is so qualified by additional words as to evince an intention not to use “issue” in the sense of an indefinite line of descent.

3. Lands were devised to A. for life and after her death to be equally divided between her children, to be held by them for life, and after their death to the issue of them and their heirs forever. Held, that the children of A. after her death took a life-estate with remainder in fee to their immediate issue as purchasers.

Before ALDRICH, J., Marion, November, 1880.

This was an action by George A. McIntyre and others, children of Archibald McIntyre, deceased, (the testator,) against Robert C. McIntyre and others, children of testator. All the children of testator's children were parties defendant. Archibald McIntyre executed his will April 28th, 1850, and died within a month afterwards. The widow of testator died in February, 1880. Soon afterwards, the plaintiffs brought this their action for a partition of the lands of testator, but doubts having been entertained as to the right of testator's children to an absolute estate in this property, the grandchildren were made parties, and a construction of testator's will asked for. The entire will is given in the opinion of this court, and other facts are stated therein.

Mr. W. W. Harllee, for appellants, cited and commented on the cases to be found in Bailey Eq. 541; 1 Hill Ch. 268; 2 Id. 198 7 Rich. Eq. 407; 1 Bro. Ch. C. 206; 2 Strange 1125; 7 T. R. 531; 2 Spears 793; 1 Strobh. Eq. 344; 3 Rich. Eq. 559;1 Id. 407;2 Hill Ch. 244;10 S. C. 58;6 Rich. 26. Also, 4 Kent 219-230; Fearne Rem. 119, 134. Mr. Fearne on page 118, is not sustained by the authorities cited.

Mr. C. D. Evans, contra, cited some of the same authorities, and, also, 4 Rich Eq. 428, 439.

The opinion of the court was delivered by

MCIVER, A. J.

Archibald McIntyre, having duly made and executed his last will and testament, departed this life in May, 1850, leaving his widow and nine children named in his will surviving, another child having been born soon after his death. All of these children now have issue living, one of them having had issue born since the commencement of these proceedings. The testator left a very considerable real and personal estate, which he disposed of as follows: “I give, devise and bequeath, after the payment of my just debts, to my well-beloved wife, Sophia McIntyre, for the term of her natural life, all my property, real and personal, to wit: [Here follows a description of the property.] To have and to hold all the said property, real and personal, and the increase thereof, for the term of her natural life; and from and immediately after her decease to my children now living, Matilda, Richard, Robert, Duncan, George, Rebecca, Archibald, Joseph, Sarah, and one in process of being, but not yet born, should the same live after its birth, likewise for the term of their natural lives, and to be divided among them share and share alike, the children of deceased parents representing such deceased parents and taking his or their share only; and, finally, upon the decease of my said children now living, and that now in process of being, to the issue of them and their heirs forever. Item. And I do hereby appoint my well-beloved wife, the said Sophia McIntyre, the executrix of this my last will and testament. I do hereby authorize, direct and empower my said executrix to keep my estate, real and personal, together, and to manage and improve the same during her natural life, that it may pass at her death into the hands of my said children, the life-tenants after her, and descend to their heirs in an improved and accumulated condition. And, finally, all the rest and residue of my estate and effects, real and personal, whatsoever and wheresoever, not herein disposed of, after payment of my debts and legacies, and funeral expenses and other charges, I do give, devise and bequeath, in manner and form, upon the same limitations and to the same parties aforesaid.”

The widow took possession of all the property as executrix and tenant for life, and remained in possession until her death in February, 1880. After the death of the testator, but before the death of the widow, two of the sons named in the will, Richard and Archibald, died, each leaving one child: Richard leaving a son named Richard H., and Archibald leaving a son also named Archibald.

There is no controversy as to the disposition of the personal property, satisfactory provisions for its distribution having been made, and the only question is as to the real estate-or rather the proceeds thereof-it having been sold under an order granted in these proceedings, which directs that the proceeds be held subject to the order of the court.

The Circuit judge held that under a proper construction of the will of the testator each of his children took an estate for life in the realty, with remainder to their children in fee, and directed that when the master shall collect the bonds given to secure the purchase-money of the real estate, he shall invest the same in bonds bearing interest payable annually, which interest shall be paid to the life-tenants, and that the corpus be paid to the tenants-in-fee, or their guardians, as the life-estates determine. From this judgment the plaintiffs and certain of the defendants appeal upon two grounds: First. Because of error in the construction of the will, the appellants claiming that, by a proper construction of the will, the children of the testator take a fee-conditional and not a life-estate in their shares of the realty. Second. Because Richard H. and Archibald McIntyre, the two children of the deceased sons, take an absolute estate in fee-simple by the express terms of the will, and, therefore, the judgment of the Circuit Court must, in any view of the question, be so modified as to give them at once their shares of the corpus absolutely.

There is no doubt that the rule in construing a will is that the intention of the testator must govern, unless such intention is in conflict with some rule of law. In this case, we suppose there is as little doubt that the testator only intended to give his children a life-estate, for he says so in express terms in the direct gift to them, and, in a subsequent part of his will, speaks of his children as life-tenants.

But this is not conclusive, for if this manifest intention comes into conflict with a well-settled rule of law, it cannot be carried into effect, but the intention must give way to the rule of law. The appellants contend that this intention of the testator comes into conflict with a rule of law which has been so long and so firmly settled as to entitle it to be called a rule of property, which is familiarly known as the rule in Shelley's Case. Without entering into a consideration of the origin of this rule or the reasons upon which it was originally founded, it is sufficient for us to say that by that rule it is well settled that where there is a devise to A. for life, and, at his death, to his issue, the limitation to the issue serves only to enlarge the estate of A. to a fee-conditional, and does not create a remainder to the issue as purchasers, notwithstanding the manifest intent to the contrary. Whitworth v. Stuckey, 1 Rich. Eq. 404, and the cases therein cited. So, that if, in this case, the devise were to the children of the testator “for the term of their natural lives,” and, at their decease, “to the issue of them,” with nothing more, then, clearly, an estate in fee-conditional would have been created, and the issue could not take as purchasers. But such are not the terms of the devise under consideration.

The terms are to the children for life, and, at their decease, “to the issue of them and their heirs forever.” So that the precise question in this case is, whether the words italicized in the preceding sentence are sufficient to take the case out of the operation of the rule in Shelley's Case. It is not to be denied that there is no little conflict in the English cases upon this question; but we think the authorities in this State conclusively show that where the word “issue” is so qualified by additional words as to evince an intention that it is not to be taken as descriptive of an indefinite line of descent, but is used to indicate a new stock of inheritance, the rule does not apply.

In Myers v. Anderson, 1 Strobh. Eq. 346, the testator gave certain slaves to his son for life, and at his...