Powers v. Bullwinkle

• Decision Date: 29 September 1890
• Citation: 33 S.C. 293,11 S.E. 971
• Parties: Powers. v. Bullwinkle.
• Court: South Carolina Supreme Court

11 S.E. 971

33 S.C. 293

Powers.

v.Bullwinkle.

Supreme Court of South Carolina.

Sept. 29, 1890.

Wills—Construction—Sale under Order of Court.

1. Testator's will provided that "all the parts of my estate * * * herein intended for the support of my daughter * * * during her natural life, shall, at her decease, revert and be divided equally amongst her children, when they attain the age of twenty-one years, and to the heirs of their bodies forever. And if any or either of her children should die before attaining the age aforesaid, or, having attained the age aforesaid, should die without issue, * * * then the part or parts of such child or children so dying shall revert and be equally divided amongst the survivor or survivors of them. And if all the children of my said daughter * * * should die before attaining the age aforesaid, or, having attained that age, should die without heirs of their bodies begotten, then all the parts of her children so dying shall return to be equally divided between the children of my sons, W. and C., so that the parents shall not be heirs to their deceased children." Held, that each of the daughter's children at the ago of 21 years took a fee conditional in his or her share, to be divested, in the event of his or her dying without issue previous to the period when all surviving children attained 21 years, with a general limitation over by way of executory devise to the children of W. and C. on the death of all the daughter's children without issue previous to the period when all surviving children should have become 21 years old; and that, therefore, the proper parties to a proceeding for sale of the property for reinvestment were the trustee, the daughter, as life-tenant, her children, representing respectively their descendants born or to be born, and the children of W. and C., as ultimate contingent remainder-men, by way of executory devise.

2. Though the children of W. and C. were not made parties, this cannot affect the title of the purchaser of the property, where all of the children of testator's daughter thereafter attained the age of 21 years, and had issue living.

3. Such a sale made by order of a court of equity having jurisdiction of the subject-matter is bind-ing on all parties before it and those properly represented by them.

4. The title derived from the sale is not affected by the fact that at the time thereof some ol the children of testator's daughter were still minors, and without issue, these conditions being thereafter fulfilled.

Appeal from court of common pleas,

Charleston county; James Aldrich, Judge.

Trenholm & Rhett, for plaintiff.

John D. Cappelniann and J. E. Burke, for defendant.

McGowan, J. On February 13, 1890, the defendant entered into an agreement in writing with the plaintiff to purchase from him a lot of land in the city of Charleston on the south side of Montague street, between Pitt and Smith streets, described in the complaint, for the sum of $4,500, one-half cash, and balance in one and two years, with bond and mortgage of the premises to secure the other half. After the agreement, the defendant refused to accept title and pay the purchase money. This action was brought for specific performance. The defendant answered as follows: Answer "The defendant above named, answering the complaint herein—First. Admits each and every allegation of said complaint, save so much as alleges that the plaintiff was, on the 13th day of February, 1890, and still is, the owner in fee-simple of the property described in the first paragraph of said complaint. Second. Alleges for a defense thereto: (1) That William Royal, by his will, dated 15th September, 1831, and proved 2d April, 1835, devised, among other things, as follows: 'All the parts of my estate, real and personal, herein intended for the support and maintenance of my daughter, Eliza Rivers, during her natural life, shall, at her decease, revert and be divided equally amongst her children when they attain the age of twenty-one years, and to the heirs of their bodies forever. And if any or either of her children should die before attaining the age aforesaid, or, having attained the age aforesaid, should die without issue of his, her, or their bodies begotten, then the part or parts of such child or children so dying shall revert and be equally divided among the survivor or survivors of them. And if all the children of my said daughter, Eliza, should die before attaining the age aforesaid, or, having attained that age, should die without heirs of their bodies begotten, then all the parts of her children so dying shall return and be equally divided between the children of my sons, William and Croskeys so that the parents shall not be heirs to their deceased children.' (2) That there were several changes of trustees; and that, before 1843, A. G. Magrath was the substituted trustee of Mrs. Rivers and children, holding upon the terms of the will above set forth; and that be was trustee for Mrs. Rivers and children upon no other trust, or upon trusts, created by no other person. (3) That on the 27th day of September, 1843, James W. Gray and Robert Elfe, trustees, conveyed this property to A. G. Magrath, trustee, on the following terms: 'To have and to hold all and singular the aforesaid lot of land, with all the appurtenances to the same belonging, unto the said A. G. Magrath, trustee of Eliza Rivers and children, his heirs and assigns forever.' (4) That on the 16th day of December, 1845, W. M. Rivers, the eldest son of Eliza Rivers, was duly appointed trustee in place of A. G. Magrath. (5) That on the 2d day of December, 1846, proceedings were commenced in the court of common pleas for Charleston county by W. M. Rivers, said trustee, to sell the said property, together with other property, as unproductive, and to reinvest the proceeds. That the only parties to this proceeding were the trustee, Mrs. Eliza Rivers, and her children, to-wit: W. M. Rivers, Maria T. Sibley, widow of Louis Sibley, both over 21; W. B. Rivers and Capers M. Rivers, infants. That the trustee sold under these proceedings, and plaintiff deduces title therefrom. (6) That in the said proceedings of December 2, 1846, W. M. Rivers, the substituted trustee, sets out in his petition as follows: 'That the said trust property now consists of a house and lot in Wentworth street, and a house and lot in Montague street, and certain other property; * * * that the parties interested in said trust property are Mrs. Eliza Rivers and her children, Maria T. Sibley, widow of Louis L. Sibley, your petitioner, of full age of 21 years, and W. B. Rivers and Capers M. Rivers, infants.' (7) That the said Maria T. Sibley, one of the children of Mrs. Eliza Rivers, had living on December 2, 1846, one child, who was not made a party to the said proceedings. At that time, W. B. Rivers and Capers M. Rivers had had no issue, and did not have until years afterwards. All the children of Mrs. Rivers, however, who had no issue then, had issue afterwards. Three of her said children are now alive, and one of them, W. B.. Rivers, is dead, leaving issue. On December 2, 1846, there were also alive children of William and Croskeys Royal, who were the children of the aforesaid William Royal, the testator before mentioned. This defendant therefore alleges that the proper parties were not made to the proceedings for sale in 1846, through which sale plaintiff claims title."

The plaintiff demurred to the answer on the ground that it did not state facts sufficient to constitute a defense. The circuit judge sustained the demurrer, and gave the plaintiff judgment thereon. The defendant appeals to this court upon the following grounds, to-wit: "(1) Because his honor should have overruled the demurrer, for the reason that all necessary parties were not made to the proceedings of 1846, under which the trustee sold, and under which the plaintiff claims title, inasmuch as, by the true interpretation of the will of William Royal, the children of Mr. Eliza Rivers had but a life-estate, and their children had interests, and one, at least, (a child of Mrs. Sibley,) was alive at the time of said proceeding, and was not a party thereto. (2) Because his honor should have overruled the demurrer, for th at the estate of the children of Mrs. Rivers was not a fee conditional, because the generality of the words, 'heirs of the body, ' used in connection with the devise tothem, is cut down by the subsequent expressions of the will so as to make it a phrase of purchase, and not of limitation, and so the proper parties were not before the court in the proceedings of 1846, as none of the grandchildren of Mrs. Rivers were parties thereto. (3) Because his honor should have overruled the demurrer, for that, if the estate of the children of Mrs. Eliza Rivers was a fee conditional, the alienation of the trustee under said proceedings was not the same as the alienation by the parties, and, even if it operated as an alienation by the parties, at least two of the children of Mrs. Rivers had no children until after the decree of 1846; and hence, whether such alienation would be good or not depends on whether those children survived their parents, and at least two of such parents are now alive, and the...