Mcintyre v. Mcintyre, CASE No. 1118.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMCIVER
Citation16 S.C. 290
PartiesMCINTYRE v. MCINTYRE.
Docket NumberCASE No. 1118.
Decision Date21 November 1881

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

[16 S.C. 291]

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

[16 S.C. 292]

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...

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22 practice notes
  • Aetna Life Ins. Co. v. Hoppin, 2023.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 12, 1914
    ...Whartenby, 17 Wall. 639, 21 L.Ed. 661; Dott v. Willson, 1 Bay (S.C.) 457; Lemacks v. Glover, 1 Rich.Eq. (S.C.) 141; McIntyre v. McIntyre, 16 S.C. 290; Jarvis v. Wyatt, 11 N.C. 227; Tucker v. Adams, 14 Ga. 548; Taylor v. Cleary, 29 Grat. (Va.) 448; Peer v. Hennion, 77 N.J.Law, 693, 76 A. 108......
  • Woodle v. Tilghman, No. 17500
    • United States
    • United States State Supreme Court of South Carolina
    • February 10, 1959
    ...is not as strong as a word of limitation as the words 'heirs of the body', Whitworth v. Stuckey, 1 Rich.Eq. 404; McIntyre v. McIntyre, 16 S.C. 290; Adams v. Verner, 102 S.C. 7, 86 S.E. 211, the former without qualification will be generally construed to have the same import as the words 'he......
  • Antley v. Antley, (No. 11762.)
    • United States
    • United States State Supreme Court of South Carolina
    • May 7, 1925
    ...term "children." Williams v. Gause, 83 S. C. 267, 65 S. E. 241; Holman v. Wesner, 67 S. C. 307-309, 45 S. E. 206; McIntyre v. McIntyre, 16 S. C. 290; Williams v. Kibler, 10 S. C. 414, 426. The proviso appearing at the end of the habendum clause reading, " * * * provided, however, that shoul......
  • Brown v. Brown,
    • United States
    • United States State Supreme Court of Iowa
    • October 19, 1904
    ...to create in the heirs of the first taker an estate in fee simple. Smith v. Collins, 90 Ga. 411, 17 S. E. 1013;McIntyre v. McIntyre, 16 S. C. 290; Myers v. Anderson, supra; Dott v. Cunningham, 1 Bay, 453, 1 Am. Dec. 624. It is almost universally held that the word “children” is a word of pu......
  • Request a trial to view additional results
22 cases
  • Aetna Life Ins. Co. v. Hoppin, 2023.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 12, 1914
    ...Whartenby, 17 Wall. 639, 21 L.Ed. 661; Dott v. Willson, 1 Bay (S.C.) 457; Lemacks v. Glover, 1 Rich.Eq. (S.C.) 141; McIntyre v. McIntyre, 16 S.C. 290; Jarvis v. Wyatt, 11 N.C. 227; Tucker v. Adams, 14 Ga. 548; Taylor v. Cleary, 29 Grat. (Va.) 448; Peer v. Hennion, 77 N.J.Law, 693, 76 A. 108......
  • Woodle v. Tilghman, No. 17500
    • United States
    • United States State Supreme Court of South Carolina
    • February 10, 1959
    ...is not as strong as a word of limitation as the words 'heirs of the body', Whitworth v. Stuckey, 1 Rich.Eq. 404; McIntyre v. McIntyre, 16 S.C. 290; Adams v. Verner, 102 S.C. 7, 86 S.E. 211, the former without qualification will be generally construed to have the same import as the words 'he......
  • Antley v. Antley, (No. 11762.)
    • United States
    • United States State Supreme Court of South Carolina
    • May 7, 1925
    ...Williams v. Gause, 83 S. C. 267, 65 S. E. 241; Holman v. Wesner, 67 S. C. 307-309, 45 S. E. 206; McIntyre v. McIntyre, 16 S. C. 290; Williams v. Kibler, 10 S. C. 414, 426. The proviso appearing at the end of the habendum clause reading, " * * * provided, however, that should said Alice......
  • Williams v. Gause
    • United States
    • United States State Supreme Court of South Carolina
    • July 21, 1909
    ...than "heirs of the body"; it embraces the whole line of lineal descendants.' 2 Jar. 331." The case of Mclntyre v. McIntyre, 16 S. C. 290, shows that "issue" is a word of limitation, unless it "is so qualified by additional words as to evince an intention that i......
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