Prudential Ins. Co. of America v. Monk

• Decision Date: 14 March 1932
• Docket Number: 13366.
• Citation: 162 S.E. 911,165 S.C. 111
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. MONK et al.
• Court: South Carolina Supreme Court

162 S.E. 911

165 S.C. 111

PRUDENTIAL INS. CO. OF AMERICA v. MONK et al.

No. 13366.

Supreme Court of South Carolina

March 14, 1932

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action for foreclosure of a mortgage by the Prudential Insurance Company of America against Robinson O. Monk mortgagor, the Southern Bond & Mortgage Company Incorporated, M. E. Bowden, as cashier of the Central National Bank of Spartanburg, the Citizens' Bank of Inman, the Merchants' & Farmers' Bank of Spartanburg and W. O. Whatley, lien creditors, and Nina Geddes Nelson and others. From the judgment, plaintiff and defendant lien creditors appeal.

Affirmed.

C. E. Daniel, C. Yates Brown, Bomar & Osborne, and Nicholls, Wyche & Russell, all of Spartanburg, for appellants.

J. Davis Kerr, Jr., of Spartanburg, and Nelson & Mullins and F. B. Grier, Jr., all of Columbia, for respondents.

STABLER J.

This is an action for foreclosure of a real estate mortgage given to the plaintiff by the defendant Robinson O. Monk. The mortgagor's title being at issue, the circuit judge held that he had and mortgaged only a life interest in the land; the appeal involves only this question, appellants contending that he could and did mortgage the fee.

Robinson O. Monk derives title to the land from the following provisions of the will of his father, Robinson B. Monk: "I give, devise and bequeath unto by beloved son, Robinson O. Monk, my place known as my Campton farm *** for his own use and herefor during his lifetime. In the event of the death of my son Robinson O. Monk without heirs, then I devise the said tract to my grandchildren."

The same language in the same will was construed by this court, adversely to the position of appellants here, in Monk v. Geddes, 159 S.C. 86, 156 S.E. 175. Permission, upon request, was granted to counsel in the case at bar to seek a review of that decision.

It is not contended that the heirs of Robinson O. Monk took any estate in the land by express provision of the will; if they took any such estate, it arose by implication. In the Geddes Case we held, for the reasons there stated, that the word "heirs," as used in the will, must be construed to mean either ""heirs of the body" or "children." It is clear that if appellants' position is to be sustained, the word "heirs" must be held to mean "heirs of the body," for if it means "children" and they take the remainder after the death of Robinson O. Monk, then the result would be the same in so far as he is concerned, for he would still take only a life estate. Narrowing the construction of the word ""heirs," therefore, for the purpose of this appeal, to "heirs of the body," it would be necessary, in order to hold that Robinson O. Monk could convey the fee, to hold that an estate in remainder arose by implication in the "heirs of the body" of Robinson O. Monk, and that by operation of the rule in Shelley's Case he took a fee conditional estate and hence, issue having been born to him, could give a fee-simple title.

To support their position, counsel for appellants rely upon their conception of the testator's intention, invoking the rule that in the construction of a will the testator's manifest intention must govern. That rule is of course, elementary, but equally important is the qualification that in case of conflict between such intention and a settled rule of law, the latter must prevail. Perhaps in no case decided in this state is this qualification more forcibly expounded than in Carr v. Porter, 1 McCord, Eq. 60, upon which appellants strongly rely and in which the court said, inter alia: "But no Judge could ever intend to carry the doctrine so far as to lay aside all the settled rules of...