Wallace v. Taylor

• Decision Date: 05 January 1924
• Docket Number: (No. 11390.)
• Citation: 120 S.E. 838
• Parties: WALLACE. v. TAYLOR et al.
• Court: South Carolina Supreme Court

120 S.E. 838

WALLACE.

v.TAYLOR et al.

(No. 11390.)

Supreme Court of South Carolina.

Jan. 5, 1924.

Appeal from Common Pleas Circuit Court of Dillon County; Henry Buck, Special Judge.

Action by Leona Hamilton Wallace, by B. E. Wallace, guardian ad litem, against E. Verbina Taylor and others. Judgment for plaintiff, and defendants appeal. Reversed.

The circuit decree was as follows:

This case was heard by me while presiding at the regular term of the court of common pleas for Dillon county, on October 13, 1922. i Permission was granted counsel to file briefs, and these have been taken under advisement and carefully considered.

It is conceded by the parties in interest that the 35-acre tract of land described in paragraph 2 of the complaint passed under the deed in said paragraph set forth to the grantee, Wally Hamilton, in fee. It is further conceded that Wally Hamilton died intestate on or about the 6th day of September, 1903, leaving as Ms heirs at law the parties set out in the pleadings and shown in the testimony. It is further conceded that this tract of land cannot advantageously be divided in kind among parties in interest, due to the number of the heirs and the small acreage in the tract. It is therefore ordered that the master for Dillon county do sell the said 35 acres on sales day in April, or some convenient sales day thereafter, for cash, and that he do divide the proceeds thereof among the parties in interest according to their respective legal rights.

It is contended that as there is no controversy as to this tract of land and that as its value is not equal to the value of the other lands in controversy, that from the proceeds of the sale of this tract only a very small proportion of the cost should be paid. This is true., but as infants are interested, to wit, the children of Austin Hamilton, the grantee of Mattie Hamilton, the arm of the court was required to make partition and therefore the proceeds of this land should at least bear a small part of the costs. It is therefore ordered that the master take testimony, determine what proportion of the costs would be just under the circumstances, and report his conclusions to the court at its next sitting after the sale thereof.

The real controversy is as to the proper construction of the deed of Whittington Hamilton, Sr., to W. W. Hamilton and W. R. Hamilton, dated March 27, 1900.

When the deed was executed and delivered, neither W. W. Hamilton nor W. R. Hamilton had any children. W. R. Hamilton died in 3903, intestate, without having had any children, and left surviving him his widow. W. W. Hamilton died intestate in 1918, leaving a widow and several children. Whittington Hamilton, the grantee, died in 1919, intestate, leaving as his heirs at law children and grandchildren as set out in the complaint. It appears that one daughter of Whittington Hamilton, Sr., predeceased her father, leaving a husband and children.

In the oral argument the attorneys for the parties in interest contended for three different constructions of this instrument:

(1) On behalf of the children of W. W. Hamilton, it was contended that upon the death of W. R. Hamilton without children his interest in the lower or eastern half went to the children of W. W. Hamilton, and that they are now therefore owners in fee of the entire tract of 180 acres.

(2) On behalf of the widow of W. R. Hamilton, it was contended that W. R. Hamilton took an absolute title in fee simple subject to be opened up and to let in any children that might be born afterwards, and that W. R. Hamilton having had no children the entire fee vested in him and upon his death his widow inherited one-half under the statute of distribution, and that the other passed under the statute to his other heirs at law.

(3) On behalf of the other parties, it was contended that the estate granted was a fee conditional, and upon the death of W. R. Hamilton without heirs of the body, the lower or eastern half of the tract reverted to the grantor, Whittington Hamilton, and that upon the death of Whittington Hamilton, intestate, the same passed to his heirs at law under the statute of distribution. It was likewise contended that there had been an actual partition between W. W. Hamilton and W. E. Hamilton, with the consent and acquiescence of Whittington Hamilton, and that a certain road was agreed upon as the dividing line.

The court understands from the brief of counsel, in which their views are briefly and concisely stated, that the first construction aforestated is not insisted upon; but, even if insisted upon, it could not be sustained. Such construction would read out of the deed so much as provides: "The said W. W. Hamilton to have the upper or western half and W. R. Hamilton to have the lower or eastern half." The contention was made evidently on the theory of survivorship, but it will be observed that the deed itself makes a partition and does not convey to the parties an undivided interest and for all practical purposes, it stands as if two separate deeds had been made.

It seems that the case of Sease v. Sease, 64 S. C. 216, 41 S. E. 898, is mainly relied upon as sustaining the second contention. In that case the grant was to "Mrs. Sease and her children." and the habendum was to "Mrs. Sease, her children, heirs and assigns." The record shows that at the time of the grant Mrs. Sease had four children then in esse and afterwards others were born. The trial court held that the word "children" should be construed as "heirs of the body, " and that Mrs. Sease took a fee conditional. The Supreme Court did not adopt this view, but held that the word "her" should be construed as meaning "their, " and as so changed, Mrs. Sease and her children took the lands as tenants in common. The court pointed out that by the use of the word "children" three times that it was manifest that the grantor intended to convey some interest to the children, and the fact that the grantor reserved a like estate to W. E. Sease, the husband, showed that he did not intend that the children should take a life estate. The court likewise pointed out that if it construed the word "children" as meaning "heirs of the body, " the deed would then contain repugnant and inconsistent words of limitation; the words "heirs of the body" being words of limitation and inconsistent with the words "heirs and assigns, " likewise words of limitation. The construction placed upon the deed by the Supreme Court was such as to give effect to every part of the deed and was preferred by the court for that reason.

If either of the grantees, W. W. Hamilton or W. R. Hamilton, had had children in esse at the date of the execution of this deed, the court is of opinion that the case of Sease v. Sease would control as to the part conveyed such a one. This would be the proper construction also under the second proposition in Wild's Case, if either of the grantees W. W. Hamilton or W. R. Hamilton had then had children in esse. It does not appear from the Sease Case that the after-born children were permitted to take along with those in esse at the time of the execution. The court is silent on this, but later decisions show very clearly that after-born children are excluded unless there is something to clearly show a contrary intention. Mcintosh v. Kolb, 112 S. C. 1, 99 S. E. 356; Folk v. Hughes, 100 S. C. 220, 84 S. E. 713. The second contention cannot be sustained.

The fact that there were no children in esse at the time the deed was executed brings this case clearly within the first proposition estab lished in Wild's Case, to wit: "If A. devises his lands to B. and his children or issues, and he hath not any issue at the time of the devise, that the same is an estate tail; for the intention of the devisor is manifest and certain, that his children or issues should take; and as immediate devisees they cannot take, for they are not in rerum natura; and by way of remainder they cannot take, for that was not his intent, for the gift is immediate; therefore such words should be taken as words of limitation." An estate tail at common law is recognized in this state as a fee conditional. Barksdale v. Gamage, 3 Rich. Eq.271; Reeder v. Spearman, 6 Rich. Eq. 92.

The first proposition stated in Wild's Case is expressly recognized in Dillard v. Yarboro,. 77 S. C. 227, 57 S. E. 841, and in the opinion of the court this case controls in the construction of the deed under consideration. In that case the deed was to May S. Yarboro with habendum "unto the said May S. Yarboro, her and her children and her assigns forever." The warranty was likewise to "May S. Yarboro, her and her children and her assigns." The granting clause of the deed construed in Dillard v. Yarboro is not set out, but it is evident that they were not words of inheritance therein. It is pointed out with particularity in that case that the fact that there were no children controlled the construction. The court said:

"The fact that there were no children in esse at the time the deed was executed plays an important part in this case. Even if the grantees named in the deed had been mentioned in a will, the children could not have taken as such, for the reason that it would be manifest that they were intended to take immediately, and not after the preceding estate, at which time they were not in existence, "

The words in the deed under consideration "unto the said W. W. and W. R. Hamilton and to their children" appear in three places, in the granting clause, the habendum, and the warranty. In the habendum and warranty there is added after the words "their children" the following: "Their heirs and assigns." It is contended that the superadded words just mentioned will prevent the construction given in the Dillard-Yarboro Case. The effect of the contention is that if the word "children" is held to mean "heirs of the body, " and that thus a fee conditional was created, then this fee conditional estate would be enlarged into a fee simple, by...