Moore v. Sanders

• Decision Date: 01 July 1881
• Docket Number: CASE No. 1060.
• Citation: 15 S.C. 440
• Parties: MOORE v. SANDERS.
• Court: South Carolina Supreme Court

15 S.C. 440

MOORE

v.SANDERS.

CASE No. 1060.

Supreme Court of South Carolina.

Jul. 20th, 1881.

A will provided as follows: “I give, devise and bequeath my whole estate both real and personal, all that I now possess or may hereafter become possessed of, to my beloved son Matthew. Learning that the law takes cognizance of the intention, even when illegally expressed, I desire to express my wish as strongly and emphatically as I can do so by will, that my beloved son Matthew shall inherit, possess and own, in fee simple, all my worldly goods-to dispose of as he may think fit. But should he die without leaving a will, then the whole to go” over. Held, that the limitation over depended upon a condition subsequent, which was void because repugnant to the estate devised, and that Matthew held, in fee simple absolute, a tract of land derived under this will.

Before THOMSON, J., Sumter, February, 1881.

This was a controversy without action instituted in February 1881. The will here construed bears date January 4th, 1868. The opinion states the case.

Mr. Jos. H. Earle, for appellant, cited Co. Lit. 112, b, note 144; 2 Roper on Leg., § 1460; 1 Hill's Ch. 367; 6 Ves. 100; 1 Jarm. on Wills 593; 16 Ves. 135; 8 Cow. 277.

Messrs. Blanding & Blanding, contra, cited 7 Bligh 56; 2 Williams on Ex'rs (2 d Am. ed.) 789; 4 Kent 270; 1 Jarm. on Wills (Perk. ed.) 677; 19 Johns. 20;8 Rich. 88.

The opinion of the court was delivered by

SIMPSON, C. J.

This is a case submitted without action under Section 389 of the code. It appears that Matthew S. Moore, the respondent, bargained to sell and convey, in fee simple, a certain tract of land to George M. Sanders, the appellant, for $3500. Moore offered and is still ready to execute titles, but Sanders declines to accept his deed, alleging that Moore cannot convey in fee. Moore's title is derived from the will of his mother, Mrs. Sarah J. C. Elliott, deceased. So much of this will as it is necessary to consider, is in the following language: “I give and bequeath my whole estate, both real and personal, all that I now possess or may hereafter become possessed of, to my beloved son, Matthew S. Moore. Learning that the law takes cognizance of the intention, even when illegally expressed, I desire to express my wish as strongly and emphatically as I can do so by will, that my beloved son, Matthew S. Moore, shall inherit, possess and own, in fee simple, all my worldly goods, to dispose of as he may think fit. But should he die without leaving a will, then the whole to go to my grandchildren, share and share alike. The child or children of any grandchildren who may die before such division taking the share which the parent would have been entitled to had said parent lived to the period of said distribution or division.”

Upon the hearing below Judge Thomson decreed that the estate devised to Moore is a fee and that he is able to make good and sufficient titles to Sanders. Sanders excepted to this decree. His appeal brings up the single question: “Did Moore take under the will of Mrs. Elliott a fee indefeasible in the land in question?

It will be seen on reading the will that Mrs. Elliott in the beginning of the clause above, bequeathed and devised to her son, the respondent, her entire personal property, and also a fee in all of her real estate; and if there was no other provision in her will, no difficulty whatever could have arisen as to its construction. She, however, with the view, as she thought, more distinctly to declare her intention, went further, and, as is not uncommon in such cases, instead of more clearly expressing her purpose, said just enough to create doubt and to demand the assistance of the courts to ascertain and declare what she really did mean. After...