Mendenhall v. Mower

• Decision Date: 21 November 1881
• Docket Number: CASE 1122.
• Citation: Mendenhall v. Mower, 16 S. C. 303 (S.C. 1881)
• Parties: MENDENHALL v. MOWER.
• Court: South Carolina Supreme Court

16 S.C. 303

MENDENHALL v. MOWER.

CASE No. 1122.

Supreme Court of South Carolina.

November 21, 1881

1. The rules governing limitations in wills, deeds and other instruments are now generally the same, whether the property affected be real or personal.

2. Some differences between limitations in a deed and will, stated.

3. The effect of a limitation to issue in a deed, and whether confined to the issue living when the particular estate determines, depend upon the intent of the grantor to be gathered from the whole instrument.

4. The word issue may describe (1) a class of persons to take as joint-tenants with other parties named; or (2) a class who are to take at a definite period as purchasers; or (3) an indefinite succession of lineal descendants who are to take by inheritance.

5. Where there is a direct gift to the issue in the first instance with a limitation over, on the death of the first takers without lawful issue, to the survivor of such takers who, at the death of testator, are persons in esse and there is no further limitation to issue, the first takers hold for life, the limitation over not being too remote; and in the absence of words showing an intention that the survivor shall take a transmissible interest, the presumption will be that he is to take personally.

6. Hence, where a purchaser of real property (which was sold under execution against D.) made a declaration of trust in 1847, that after the repayment to him of the purchase-money he would hold the property in trust " for the use of A (wife of D.) for life, and after her death for the use of B and C., and their respective issue, or the survivor of them (the said B. and C.), if either of them should die without issue, and if both should die without issue, then for the use of D.," & c.-neither B. nor C. then having issue. Held , that B. and C. took a life-estate, after the death of A., with remainder to their respective issue as purchasers.

7. Under proceedings had in the Court of Equity, subsequent to the act of 1853 (12 Stat. 262), a portion of this land, acquired by A. through inheritance, previous to the sheriff's sale, was sold, and the proceeds were applied first to a debt due by A., and the balance was ordered to be held subject to the same trusts as before declared. Held , that the result is the same as above stated, for the property so sold was converted into personalty and settled by this order of court, and is governed by the legislative construction given to the words " dying without issue," contained in the act of 1853.

8. The original trustee being dead, a new trustee should be appointed to preserve the estate for the remaindermen.

Before WALLACE, J., Newberry, May, 1880.

This was an action instituted in February, 1880, by James K. Mendenhall and his sister, Pauline Eliza Scott, against George S. Mower, trustee, Nancy Mayes, as administratrix of William G. Mayes, deceased, and all the children and heirs of deceased children of the plaintiffs.

The case called for the construction of the following instrument:

" THE STATE OF SOUTH CAROLINA.-I, John Belton O'Neall, having, on yesterday, purchased at the commissioner's sale, the lands and mills, in Newberry district, known as Mendenhall's, the said tract of land containing 1,050 acres, subject to the inheritance of Mrs. Phoebe Mendenhall, on 400 acres on which are the mills and houses, at and for the sum of $2,600, and the following slaves, viz.: Frank, at $600; Jordan, at $500; John, at $610; Allen, at $510; Peter, at $360; Bob, at $250; Jupiter, and wife, Ritta, and their children, Tilda, Alsey, Frank, Eliza and Minerva, at $2,405; Calvin, at $580; Jacob, at $600; Tilda, at $400; Abbey, at $350, and Siller, at $150, making a total for the said slaves of $7,540. And, whereas, the said land and slaves so purchased were once the property of Dr. M. T. Mendenhall, and at his request, I have consented to hold the same upon the following trusts: 1. For the payment of $1,900, the balance of the purchase-money of the land and mill, ($700 having been to-day paid,) and of $7,540, the aggregate price of the said slaves. If these sums be paid by Mrs. Phoebe Mendenhall, Pauline Eliza Mendenhall, or James K. Mendenhall, the wife and children of Dr. Mendenhall, or by the said Dr. Mendenhall as their agent, at the several times at which my bond to the commissioner, and notes in the bank, shall be severally due; then, in the second place, I am to hold the said land, mills and slaves for the use of Mrs. Phoebe Mendenhall for life, and after her death for the use of Pauline Eliza Mendenhall and James K. Mendenhall, and their respective issue, or the survivor of them (the said Pauline and James), if either of them should die without issue; if both should die without issue, then for the use of the said Dr. M. T. Mendenhall, or such person as he may direct and appoint; but if failure should be made in such payments, then I am to sell the said property or so much of it as may be necessary to make the payments. If at any time it be thought advisable by myself and Dr. Mendenhall to sell part of the said property, real or personal, it will be perfectly consistent with the trust intended that such sale should be made. The said land and property are placed in the hands of Dr. Mendenhall as my agent until the purchase-money be paid as hereinbefore stated, and after that as agent for his family.

Witness my hand and seal this 5th January, 1847.

" JOHN BELTON O'NEALL. [L. S.]

" Signed and sealed in our presence,

" G. W. GARMANY,

" D. M. COLE."

In January, 1863, Judge O'Neall conveyed all of this land, (except the 400 acres and 157 acres, afterwards sold,) in two tracts, to the two plaintiffs in this action, to each one tract, to him and her for life, with remainder to their children, respectively. Subsequently, the 400 acres and 157 acres were sold, as stated in the opinion of the court, which also states other material facts.

The Circuit decree was as follows:

On hearing the pleadings and evidence herein, and argument of counsel thereon, it is ordered, adjudged and decreed that the plaintiffs are only entitled to the net income of the trust-estate in question in this action jointly and equally for and during their natural lives, and then, upon the death of either, leaving no issue at the time of his or her death, the survivor shall take the whole income for and during his natural life; and if either shall die, leaving issue at the time of his or her death, the survivor shall take one moiety of said income and the issue of the deceased the other moiety for and during the said remainder of the said survivor's life; and that upon the death of such survivor, the respective issue of the plaintiffs living at the time of the death of each, shall be absolutely entitled to said trust-estate per stirpes free and discharged from all trusts. It is further ordered that George S. Mower be and is hereby appointed trustee, in whom the said trust estate shall vest, to be administered by him for the purposes and upon the terms and limitations hereinbefore set forth, upon his entering into a bond to the clerk of this court, & c.

From this decree plaintiffs appealed upon the following exceptions:

1. Because the Circuit judge held that the appellants, James K. Mendenhall and Eliza P. Scott, have only a life-estate in the property in question; whereas, it is submitted, he should have held that they have an absolute fee-simple estate in it.

2. Because the Circuit judge erred in holding that the appellants have only a life-interest in the said property; whereas, it is submitted, he should have decided that they had at least a fee-conditional in the lands, and should have that estate in any lands in which the funds may be invested, and an equivalent estate now in the funds.

3. Because, whatever estate the appellants may have in the property, there is no necessity for a trustee to hold and administer the property perpetually.

4. Because the Circuit judge erred in holding that the said estate should be kept together until the death of both appellants before division; whereas, it is submitted, he should have held the property divisible at the death of either of them, allowing that they have only life-estates.

Messrs. Y. J. Pope and J. F. J. Caldwell , for appellants.

Mr. T. S. Moorman , contra.

OPINION

SIMPSON C. J.

In 1847, the property, real and personal, of Dr. Mendenhall, then of Newberry county, was sold at public sale, we suppose at the instance of his creditors. The Hon. John Belton O'Neall became the purchaser, paying part of the purchase-money in cash, and securing the remainder by his notes.

The object of Judge O'Neall in making the purchase was to befriend the family of his friend, Dr. Mendenhall, and, to this end, immediately after the sale, he executed an acknowledgment of trust embracing the entire property purchased, to wit, a large tract of land and a number of slaves. In this acknowledgment he stated that he held the property in trust: First . For the payment of the purchase-money by Mrs. Phoebe Mendenhall, Pauline Eliza Mendenhall and James K. Mendenhall, the wife and children of Dr. Mendenhall, or by Dr. Mendenhall, their agent. Second . For the use of Mrs. Phoebe Mendenhall for life, and after her death, for the use of Pauline Eliza Mendenhall and James K. Mendenhall and their respective issue, or the survivor of them, the said Pauline and James, if either of them should die without issue; if both should die without issue, then for the use of the said Dr. M. T. Mendenhall, or such person as he might appoint.

Some time after this, and after the death of Judge O'Neall in 1863, but at what time is not stated, proceedings were instituted by a judgment creditor of Mrs. Phoebe...