Sims v. Clayton

• Citation: 7 S.E.2d 724,193 S.C. 98
• Decision Date: 18 March 1940
• Docket Number: 15041.
• Parties: SIMS v. CLAYTON et al.
• Court: United States State Supreme Court of South Carolina

7 S.E.2d 724

193 S.C. 98

SIMS v. CLAYTON et al.

No. 15041.

Supreme Court of South Carolina

March 18, 1940

Esten C. Taylor, of Spartanburg, for appellant.

D W. Galloway and C. E. Strange, both of Spartanburg, for respondent.

CARTER Justice.

Plaintiff brought this action for the purpose of having the court construe a deed, dated November 12, 1917, from Mrs. L. A Sims to Nathan Augustus Sims and Nancy Agnes Sims (now Nancy Sims Clayton), and also for the purpose of having partitioned in kind the real estate described in the deed and owned in common by the two grantees. The complaint alleges that Nathan A. Sims "owns a fee simple conditional title to his moiety of said property".

The plaintiff, Nathan A. Sims, and the defendant, Mrs. Nancy Sims Clayton, are twins, have passed their twenty-first birthday and both are now married. Nathan A. Sims has a minor child, Harriet Ann Sims but the other grantee, Mrs. Nancy Sims Clayton, has no child. Esten C Taylor was appointed guardian ad litem for Harriet Ann Sims and for the unborn issue of Nathan A. Sims; Hugh Clayton was appointed guardian ad litem for the unborn issue on Nancy Sims Clayton. Both guardians ad litem have filed answers and made personal appearances. L. P. Sims, Sr., and Mrs. Blanche Sims Harris, who were made parties defendant for the reason that they are the only heirs and distributees at law of Mrs. L. A. Sims, have answered.

The preamble to the deed is as follows: "Whereas, I have previously made provisions for certain of my grandchildren, and their descendants by conveying to them certain lots of property given me by my husband to the end that the property may remain in the Sims family, and among those bearing the name, in perpetuity so long as the law may permit."

The granting clause reads, in part: "*** to be held and enjoyed by them, during the full term of their natural lives, and at the death of either without heirs of the body surviving them to the survivor of them, but upon the death of either or both with heirs of the body surviving, to the heirs of their body or bodies in fee simple forever." The consideration was love and affection and one dollar.

The habendum clause contains this provision: "To Have And To Hold *** jointly share and share alike for the full term of their natural life or lives, and at the death of either without issue of the body the survivor to take the premises for his or her enjoyment during the term of his or her life, and at the death of the survivor to the heirs of their body or the heirs of the body of either leaving heirs, their heirs and assigns forever, subject to the use and enjoyment of the premises by the grantor, Mrs. L. A. Sims, during the term of her natural life."

The matter was referred to the master for Spartanburg County, who held two references. He reported that Nathan Sims and Nancy Sims Clayton have agreed upon a plan for a partition in kind of the property in question, and recommended that commissioners be appointed to execute this plan; that there is due in unpaid taxes in excess of $980 on this real estate, and, in its present state, is incapable of yielding sufficient income to pay current taxes; that it has fallen into a hazardous state of disrepair and dangerous to its tenants, who will vacate it unless it is repaired; and that the grantees cannot agree upon a plan for improvement or of providing funds for repair. The master found that "under the deed, Nathan Sims and Nancy Sims Clayton have fee conditional estates. Lawful issue having been born to Nathan, the reversion of his estate is therefore barred, and he can alienate his share of the property any time during his life. Upon birth of lawful issue to Nancy, she will then have the same right of alienation". By his decree dated August 29, 1939, Judge Sease confirmed the master's report. The guardian ad litem for Harriet Ann Sims now appeals to this court.

The appellant states that the "sole question involved on this appeal is whether the Circuit Court was in error in holding that the grantor in the deed construed herein used the words 'to the heirs of their body' occurring in the granting and habendum clauses, in their strict legal sense and not in the non-technical sense of 'children' or 'grandchildren"', contending that an examination of the entire deed shows-clearly and unmistakably that the grantor did not intend to use the words "heirs of their body" in their established legal sense, which intention is manifested, first, by the declaration of the grantor in the preamble "of her intention that the property conveyed may remain in the Sims family, and among those bearing the name in perpetuity so long as the law may permit', and, secondly by the limitation in the granting clause 'to the heirs of their body or bodies in fee simple forever', and in the habendum 'at the death of the survivor to the heirs of the body or the heirs of the body of either leaving heirs, their heirs and assigns forever."'

We find in Antley v. Antley, 132 S.C. 306, 308, 128 S.E. 31, 32, that "one of the first canons of construction is that the intention of the grantor must be ascertained and effectuated if no settled rule of law be contravened". With this in mind, we will now seek to discover whether there is such an intention disclosed in the deed as will bar the operation of the rule in Shelley's case.

To begin with, our careful reading and study of the preamble leads us to conclude that it has no bearing on, or does not explain in any way, the estate conveyed in the granting and habendum clauses. The preamble here shows on its face that the grantor is definitely referring to provisions previously made in other deeds for grandchildren other than the grantees in the present deed. In other words, it is clear that the grantor is merely saying that she had previously conveyed certain lots of property to certain of her grandchildren other than the grantees here, and that the expression "to the end that the property may remain in the Sims family, and among those bearing the name in perpetuity so long as the law permits", has reference to the property so previously conveyed in other deeds.

We come now to an examination of the granting and habendum clauses. In the granting clause we find the superadded words "in fee simple forever". The case of Clark v. Neves, 76 S.C. 484, 57 S.E. 614, 12 L.R.A., N.S., 298; casts much light upon our consideration of the effect of these superadded words. In that case the language of the deed was "To have and to hold *** to said W. A. Clark, in trust for *** Eleanor B. Clark *** for and during her natural life, and at her death the said premises are to belong of right in fee simple to the lineal heirs of the said Eleanor B. Clark forever." The appellants there contended "that the limitation 'lineal heirs' is so qualified by the superadded words 'in fee simple' 'forever' as not to denote an indefinite line of descent, but a new stock of inheritance". The court held that Eleanor B. Clark took a fee conditional. We quote from that case:

"This being a deed instead of a will, and an executed trust instead of an executory trust, the construction must be governed by the strict rules of the common law. McMichael v McMichael, 51 S. C. [555], 557, 29 S.E. 403. The apparent intent can only be given such effect as accords with the established rules governing common-law conveyances. The words 'lineal heirs,' like 'heirs of the body,' mean all lineal descendants to the remotest posterity, and are words of inheritance, and not of purchase, unless the instrument clearly shows they were used in a restricted sense to denote 'children.' Duckett v. Butler, 67 S.C. 130, 45 S.E. 137; Holman v. Wesner, 67 S.C. 307, 45 S.E. 206. The words at her death 'the said premises are to belong of right in fee simple to the lineal heirs of the said Eleanor B. Clark forever' cannot have such restricting effect, for that would contradict the apparent intent to provide for other of the lineal descendants not children ***.

"Under the rule in Shelley's Case, if an estate of inheritance be given to the ancestor, and a remainder be thereon limited to his heirs, or to the heirs of his body, such remainder is immediately executed...