Smoak v. McClure

• Decision Date: 06 July 1960
• Docket Number: No. 17677,17677
• Court: South Carolina Supreme Court
• Parties: Mrs. Ertelle G. SMOAK, Mrs. Ruby G. McSpadden, J. Rembert Garris, and John A. Garris, Appellants, v. Mrs. Dora W. McCLURE, Respondent.

Page 55

115 S.E.2d 55

236 S.C. 548

Mrs. Ertelle G. SMOAK, Mrs. Ruby G. McSpadden, J. Rembert Garris, and John A. Garris, Appellants, v. Mrs. Dora W. McCLURE, Respondent.

No. 17677.

Supreme Court of South Carolina.

July 6, 1960.

Furman R. Gressette, St. Matthews, for appellant.

Parler & Hamilton, St. George, Charles B. Elliott, Columbia, for respondent.

OXNER, Justice.

The question presented is what estate was acquired by Ben Garris under the deed from his father, E. M. Garris, dated September 1, 1909, and recorded in the office of the Clerk of Court of Dorchester County on June 14, 1910. It recites a consideration 'of the sum of the love and affection I have for my son and one Dollars'. The granting clause reads:

'Do grant, bargain, sell and release unto the said Ben Garris, his natural life time, then to heirs or next of kin in case he has no heirs.'

The habendum clause is regular in form, as follows:

'To have and to hold, all and singular, the said premises before mentioned unto the said Ben Garris, and his Heirs and Assigns forever.'

The deed contains a general warranty to 'Ben Garris or his heirs and assigns.' The renunciation of dower by the wife of the grantor is 'unto the within named Ben Garris, or his heirs or next nearest of kin Heirs and assigns.'

Ben Garris died on May 5, 1957. He had five children. The oldest died at the age of ten months. The record does not disclose whether this child was born before or after the above deed was executed. The other four children were born subsequent to its execution and constitute the appellants on this appeal. They contend that their father, Ben Garris, only acquired a life estate under the above conveyance and as remaindermen they are now vested with fee simple title to the property. It is conceded that respondent through divers mesnes conveyances has acquired whatever title Ben Garris received under the foregoing deed. She and her predecessors in title have been in possession of the property under a claim of absolute ownership for 37 years. Ben Garris lost possession in 1923 through foreclosure proceedings.

The Master to whom the case was referred concluded that the word 'heirs' in the granting clause was not used in its technical sense but to denote 'children'; that Ben Garris acquired only a life estate with remainder in fee to his children but if he 'died without leaving any children then the property would go to his next of kin'; that words of inheritance were not necessary as the deed should be construed as a covenant to stand seized to uses; that this construction of the granting clause rendered it in conflict with the habendum clause but under the well settled rule the former should prevail; and that appellants, the only living children of the grantee, were now vested with fee simple title. The report of the Referee was reversed by the Circuit Judge who held that the deed conveyed to Ben Garris fee simple title and that it was immaterial, in view of the fact that he had living children when he conveyed it, whether such title be regarded as a fee simple absolute or a fee conditional.

The crucial question in the case is the meaning which should be given the word 'heirs' in the granting clause. Appellants say that to construe this word in its technical sense would clearly thwart the intention of the grantor and that it should be construed as denoting 'children'.

While it is always open to inquiry whether the word 'heirs' was used in a will or deed in its technical sense or in a more inaccurate sense to denote 'children', there is a strong presumption that this word was used in its technical sense and it will not otherwise be construed unless it manifestly appears that such was the intent of the testator or grantor. Bryant v. Britt, 216 S.C. 299, 57 S.E.2d 535, 16 A.L.R.2d 666, and cases therein cited. It may be true, as argued by appellants, that the grantor was not familiar with the technical meaning of the word but as stated by the Court in Jarecky v. Jarecky, 194 S.C. 456, 9 S.E.2d 922, 924: 'The theory that the popular signification of the word 'heirs' is that of 'children', and that where a will is drawn by a layman it might be assumed that he had this signification in mind, is of course completely untenable.'

We find no language in this deed sufficient to overcome the presumption that the word 'heirs' was used in its technical sense as a word of limitation. Appellants lay great stress upon the fact that after giving a life estate to Ben Garris in the granting clause there follows the phrase 'then to heirs or next of kind in case he has no heirs.' It is argued that the superadded provisions for next of kin clearly negatives the idea that the word 'heirs' was used in its...