Wood v. Wood

• Decision Date: 02 July 1925
• Docket Number: 11795.
• Citation: 128 S.E. 837,132 S.C. 120
• Parties: WOOD v. WOOD ET AL.
• Court: South Carolina Supreme Court

128 S.E. 837

132 S.C. 120

WOOD v. WOOD ET AL.

No. 11795.

Supreme Court of South Carolina

July 2, 1925

Appeal from Common Pleas Circuit Court of Greenville County; T. J Mauldin, Judge.

Action by David W. Wood against Sarah Addie Wood and others. Decree for plaintiff, and defendants appeal. Affirmed.

Charles & Beaty and T. H. Munro, all of Greenville, for appellants.

Nettles & Oxner, of Greenville, for respondent.

PURDY J.

The following is the report of E. Inman, Esq., master:

The master, to whom this case was referred to take and report the testimony, together with his conclusions of law and fact with leave to report any special matter, begs leave to report that he has taken the testimony, which is herewith attached and finds as his conclusions of law and fact as follows:

This action was instituted for the purpose of having the will of John W. Wood construed so far as it pertains to 40 or 50 acres of land near the city of Greenville, and of having the title thereto adjudged by the court as being vested in the plaintiff and John H. Honour, who purchased a portion of said property from the plaintiff and his wife.

The facts pertinent to a proper consideration of the issues are as follows: John W. Wood, father of plaintiff, departed this life on December 28, 1897, leaving his last will and testament, over the construction of which this controversy arises. The will is contained in the testimony. Item 3 thereof, which the court is asked to construe, and which covers the property above described, is as follows:

"Third. I give bequeath and devise to my son David W. Wood that part of my farm on which he, the said David W. Wood, now lives joining lands of H. C. Markley and Jack Elija, and bounded on one side by the Lowndes Hill road, extending back to a row of pear trees near a well, and containing between forty and fifty acres of land, during his life, and at his death if he have no surviving legitimate children, the land to be sold and one-third of proceeds to be paid to his wife if she be living, and remaining two-thirds to my son William T. and Caladonia B., my daughter, or their heirs. In case of death of wife of David W. before his demise, then at his death the land to be sold and proceeds divided between my living children the said William T. and Caladonia B. or their heirs."

This will was duly admitted to probate, the executor therein named duly qualified, administered upon the personal estate, and in 1907 made his final return, and was discharged at that time by the probabe court for Greenville county.

The plaintiff is named as the life tenant in said item of said will above referred to. In 1914 William T. Wood and Caladonia Baker, brother and sister of plaintiff, in order to give plaintiff and his wife fee-simple title to said premises, executed and delivered to plaintiff their deed in the usual form whereby they conveyed to the plaintiff all their right, title, and interest to said premises. Plaintiff was advised that with this conveyance he and his wife acquired fee-simple title thereto. In 1916 plaintiff and his wife sold 20 acres from said tract to John Henry Honour, and executed general warranty deed to the portion sold.

The testator at the time said will was executed and the time of his death had only three children living. The testator had six children in all, three of whom predeceased him, leaving no children. The three children living at the time of the execution of said will and at the time of the death of testator were W. T. Wood, Caladonia Baker, and plaintiff. Testator's wife predeceased him. All three of these children are named in item 3 of said will. One of said children, W. T. Wood, died in 1920, leaving surviving him as his heirs at law his wife, Sarah Addie Wood, and two children, namely, Virginia Wood Wade and Cola Wood. Cola Wood died about two years ago, leaving no children surviving, and as her heirs at law her husband, Robert Burroughs, her mother, Sarah Addie Wood, and her sister, Virginia Wood Wade. Caladonia Baker, the remaining child of testator other than plaintiff, is still living, her husband being now dead, and said Caladonia Baker has only one child now living, Jessie Baker Thompson, the deceased children of Caladonia Baker leaving no children. Plaintiff never had any children.

All the defendants executed a quitclaim deed to the plaintiff shortly before the commencement of this action, said deed including an assignment of any interest which said defendants now have or may hereafter acquire in the proceeds from the sale of said property. I find, therefore, that plaintiff has acquired the interest of all the heirs of testator now living as well as the interest of the heirs of the deceased son, W. T. Wood.

Plaintiff contends that under the proper construction of said will that the only parties acquiring any interest in the premises were plaintiff and his brother, W. T. Wood, and sister, Caladonia Baker, and plaintiff's wife, Sallie Wood, and that, plaintiff having acquired the interests of these parties, he now owns said property in fee simple.

Defendants, while conceding that plaintiff has acquired whatever interest they have, contend that plaintiff has not good title to said premises for the reasons: (1) That any children hereafter born to plaintiff (plaintiff never having had any children) would take an interest in said premises by implication under item 3 of said will; (2) that it is not certain as to who will he the heirs of W. T. Wood and Caladonia Baker (if she shall predecease plaintiff) living at the time of the death of plaintiff, and any conveyance by the present heirs would not bar those, if any, hereafter born and living at the death of plaintiff; (3) that said will provides that said premises should be sold upon the death of plaintiff, and that the only interest which W. T. Wood and Caladonia Baker or their heirs acquired under said will was in the proceeds from sale of said premises, and, having no interest in said land, could convey none, and their acts in making said conveyances, if upheld, would defeat the scheme of said will and intentions of testator.

I shall take up the contentions of defendants in the order hereinabove set out. I do not think any children which plaintiff may hereafter have would take any interest as purchasers under the terms of said will.

In Shaw et al. v. Erwin et al., 41 S.C. 209, 19 S.E. 499, the court held that under a will devising land to one and providing that should he die, leaving no child or children, it is to go to another; that the first takes a fee, and his children do not take as purchasers by implication. Also the case of Manigault et al. v. Holmes, Bailey Eq., 298, is to the same effect, and this case is cited in Shaw v. Erwin, supra.

In Lawrence et al. v. Burnett et al., 109 S.C. 416, 96 S.E. 144, the court said:

"In the granting clause, a life estate only is given to Simeon in express terms, coupled with a provision that, if he should die without a child, the land should revert. No disposition is made of the remainder if Simeon should die with a child, and there is no direct provision for the child, if any; and it is

well settled that, in such a case, the child cannot take as a purchaser by implication. Manigault v. Deas' Adm'rs, Bailey Eq. 298. The giving of an express life estate to Simeon, coupled with the condition that, if he die without child, the land should revert, negatives the intention that Simeon and his child or children were to take in indefinite succession, though an intention to benefit the child or children, if any, may be implied."

Applying the principles laid down in the foregoing cases, I find that there is no estate by implication to the children, if there be any, of plaintiff.

The second contention of defendants is based upon the assumption that the estate given after the life estate does not vest until the death of the life tenant, and therefore Caladonia Baker, W. T. Wood, and plaintiff's wife have no vested estate, and those who are to take will be determined as of the time of the death of the life tenant, who is the plaintiff, and consequently it is impossible at this time to foretell who such may be. I do not think this was the intention of the testator, and such a construction is not supported by the weight of authority.

In Chapman v. Chapman, 90 Va. 409, 18 S.E. 913, we find a case almost identical with the case at bar. The following portion of the opinion states the question which was before the court:

" 'It is my wish and desire that all of my estate both real and personal, which I have not heretofore disposed of, I loan to my wife, Elizabeth Chapman, during her natural life; and my wish is that the property I have loaned to her, after her death, both real and personal, should be sold by my executors, and the money arising from the sale should be equally divided among my four children above named, or their lawful heirs begotten of

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