Tyson v. Weatherly

• Decision Date: 16 March 1949
• Docket Number: 16196.
• Citation: 52 S.E.2d 410,214 S.C. 336
• Parties: TYSON et al. v. WEATHERLY et al.
• Court: South Carolina Supreme Court

52 S.E.2d 410

214 S.C. 336

TYSON et al. v. WEATHERLY et al.

No. 16196.

Supreme Court of South Carolina

March 16, 1949

Tison & Miller, of Bennettsville, for appellants.

Stevenson & Lindsay, of Bennettsville, for respondents.

STUKES Justice.

C. M Weatherly of Marlboro County executed a deed of a tract of land to his daughter, Coline E. Weatherly, dated June 24 1905, wherein the granting clause is as follows:

'unto the said Coline E. Weatherly for and during the period of her natural life and after her death to her then living children share and share alike; the child or children of one dead to stand in the stead and represent his, her or their parent and take the same part said deceased parent would have taken if living.'

The habendum is also quoted, as follows:

'To Have and to Hold all and singular the premises before mentioned unto the said Coline E. Weatherly for and during her natural life and then to her surviving children, share and share alike, the child or children of any deceased child to take the part his, her or their parent would have taken if living, to them and their heirs and assigns forever.'

A few months later the grantor made his last will and testament which contained a residuary clause, the effect of which is not in issue so it need not be referred to in detail.The will was admitted to probate after the maker's death in 1906.

The grantee in the aforementioned deed, Coline E. Weatherly never married and died childless and testate on February 8 1946.This action for partition of the land was commenced September 25, 1946, and involves the construction of the terms of the deed.

The appeal is from the decree of the Circuit Court which held upon the authority of Manigault v. Bryan,154 S.C. 78, 151 S.E. 199, that the fee of the property did not pass from the grantor under the deed but remained in him subject to the happening of the contingency whereby the remainder should vest and, it never having happened, the fee passed to his devisees under the terms of the residuary clause of his will.

The exceptions mainly challenge this conclusion and contend that the interest in the land which remained in the grantor was an expectancy or possibility of reverter which could not be aliened or devised.The nature of these exceptions, which are the first three assigned by appellants, are such that they do not contest the holding that, if the fee remained in the grantor, it passed to his residuary devisees.In other words, it is not contended that the terms of the residuary clause of grantor's subsequent will were insufficient to vest the fee in the residuary devisees, if the fee remained in the grantor after the execution and delivery of the deed.Thus there is no question of testacy or intestacy as to the reversion.The result of the contention of appellants is that the fee descended to those who are able to bring themselves within the description of heirs of the grantor at the time of the death childless of Coline E. Weatherly.There is a fourth exception which will be treated last, in the light of the facts upon which it is based.

Manigault v. Bryan,supra, 154 S.C. 78, 151 S.E. 199, 200, and the authorities which it cites are conclusive upon the construction of the deed in hand.That case involved a will, here quoted:

'I give, devise and bequeath all my property of every kind and description unto my wife, Mary E. Manigault, for and during the term of her natural life or widowhood, and from and after the death of my said wife or her widowhood, whichever event may first happen, I give, devise and bequeath all of my said property unto my children living at the death or marriage of my said wife, share and share alike, absolutely and forever; but if there be only one child living at the death or marriage of my said wife, then I give, devise and bequeath unto that one child all my said property, absolutely and forever.'

The widow and two children survived testator but both children died intestate and unmarried, the widow surviving unmarried at the time of the litigation.It was held that the fee remained in the testator or his heirs until the happening of the contingency which should vest the remainder in fee, and the death of both children childless made the contingency impossible, so that the widow inherited from the children as their sole heir and these inherited estates combined with her own as an heir of her husband, and thereby the whole estate in fee became vested in the surviving widow.

The fact that a will was concerned in the Manigault case, instead of a deed as here, is of no moment.The exhaustive opinion cites supporting authorities in which were involved construction of deeds and quoted with approval is the following from 3 Thomp.Real Property, section 2162:

'Where a deed conveyed a life estate, with a contingent remainder to others, the fee remained in the grantor, subject to be divested by the happening of the contingency upon which the title would vest in the remaindermen, and descended to the heirs of the grantor in case of his death before the happening of the contingency.'

The result of the conveyance under construction was not to mount a fee upon a fee, as is...