Williams v. Gause

• Decision Date: 21 July 1909
• Parties: WILLIAMS. v. GAUSE et al.
• Court: South Carolina Supreme Court

65 S.E. 241
(83 S.C. 265)

WILLIAMS.
v.
GAUSE et al.

Supreme Court of South Carolina.

July 21, 1909.

1. Deeds (§ 124^*) — Construction — Estate Created—Fee Simple.

Under a deed to grantee, and "his lawful heirs and their lawful heirs forever, " the grantee took a fee-simple title, and not merely a life estate.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 344-355, 416-428; Dec. Dig. § 124.*]

2. Deeds (§ 126*) — Construction — Estate Created—"Issue."

Under a deed to the grantee and "his lawful issue and their lawful issue forever, " the grantee took a fee conditional estate; the word "issue" being one of limitation, and not of purchase.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 356y₂, 357, 449; Dec. Dig. § 126.*

For other definitions, see Words and Phrases, vol. 4, pp. 3790-3791; vol. 8, p. 7693.]

Appeal from Common Pleas Circuit Court of Florence County; C. G. Dantzler, Judge.

Action by A. H. Williams, trustee in bankruptcy of W. B. Gause, bankrupt, against W. B. Gause and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Kelly & Hinds-for appellants.

Wlllcox & Willcox and W. L. Bass, for respondent.

GARY, A. J. This action was commenced for the purpose of having the court to construe two deeds, executed by W. N. Gause, on the 20th of March, 1894. The deeds were in the usual form, except as to the habendum, and W. B. Gause was the grantee in each deed. The deed which will be construed first has the following habendum clause: "To have and to hold all and singular the said premises, unto the said W. B. Gause his lawful heirs, and their lawful heirs forever." It was contended by the defendants that the language used by the grantor in this habendum clause had the effect of creating in W. B. Gause, not a fee-simple title, but merely a life estate, with remainder to his children as purchasers. His honor, the circuit judge, held that W. B. Gause took a fee simple. The defendants appealed on the ground that the circuit judge erred in so ruling, and in not holding that the words "his lawful heirs" should be construed to mean children, and that W. B. Gause, therefore, took only a life estate.

In the case of Poston v. Midland Timber Co., 76 S. C. 36, 56 S. E. 546, the court had under consideration, the construction of a deed, in which the habendum clause was: "To have and to hold all and singular the said premises, unto the said Virginia C. Trosser her lifetime, and at her decease to her lawful heirs, heirs and assigns forever." The court said: "The only question is whether the grantee took an estate for life, or in fee simple. This case is conclusively settled by the case of Danner v. Trescott, 5 Rich. Eq. 356, in which the court affirmed the decree of Chancellor Dargan, who said: 'I am aware of no case, English or American, where, even in reference to personal property, this idea of cutting down what otherwise would be a fee, by superadded words of limitation, indicating an intent to create a new stock, has ever been applied in a case where the gift to the first taker was to him and his heirs general.'" In the case of Clark v. Neves, 76 S. C. 484, 57 S. E. 614, 12 L. R. A. (N. S.) 298, the court used this language: "The case of Danner v. Trescott, 5 Rich. Eq. 356, shows that a deed conveying land to A. for life, and after her death to her right heirs, their heirs, and assigns forever, does not create 'right heirs' (the same as heirs general) into a new stock of inheritance, so as to prevent the operation of the rule in Shelley's Case." These...