Woodle v. Tilghman, 17500

Decision Date10 February 1959
Docket NumberNo. 17500,17500
Citation107 S.E.2d 4,234 S.C. 123
PartiesJohn WOODLE, Lawrence Woodle, Mitchell Woodle, Marvin Woodle, Mattie W. Cherry, Nellie W. Haselden and Ethel W. Squires, Respondents, v. H. L. TILGHMAN, Jr. and Anne, T. Boyce, Appellants.
CourtSouth Carolina Supreme Court

C. W. Derrick, Marion, for appellants.

McLaurin & McLaurin, Dillon, for respondents.

OXNER, Justice.

The question presented is whether Della Moneyham acquired a fee conditional estate under the following Item in the will of Araline Moneyham:

'Item 5th. I give and devise to Della Moneyham (now about 15 years of age) for life only and then unto the lawful issue of her body, and if she should die without children then to Robert Harper's children, share and share alike all that track of the James Godbolt land North of a line run by J. B. White, Surveyor, during the year 1887 from Great Pee Dee River in the direction of Bear Swamp.'

In other items of the will the testatrix devised a tract of land to 'Dr. J. E. Jannigan, his heirs and assigns', and another tract to Robert Harper 'for life only, and then to the lawful issue of his body.' After disposing of certain personal property, she directed that the residue of her estate be divided equally between Robert Harper and Della Moneyham. She appointed Dr. J. E. Jannigan guardian of Della Moneyham and directed that during her minority or until her marriage he 'look after' the property given to her.

The will was executed on January 31, 1889 and the testatrix died the same year. The record does not disclose her family connections. We, therefore, do not know what relation she bore to the devisee Della Moneyham or to the others named in her will.

Della Moneyham married a Woodle. She died in 1933, survived by seven children who are respondents on this appeal. In 1903, after the birth of several children, she sold the tract of land mentioned in Item 5 to one Philip C. Dew and undertook to convey to him fee simple title. After divers mesnes conveyances, the property was sold and conveyed to appellants. In some of these deeds there was a general warranty and in others a limited warranty.

Respondents contend that under Item 5, Della Moneyham (Woodle) acquired only a life estate with remainder to her children in fee, who now have fee simple title to this tract of land. Appellants claim that Della Moneyham (Woodle) acquired an estate in fee conditional and after the birth of a child could, and did, convey good fee simple title which through divers conveyances is now vested in them. The Court below held that Della Moneyham (Woodle) only acquired a life estate under Item 5 with remainder in fee to her children and that the respondents are now entitled to possession of the property.

It will be noted that the testatrix died long before the rule in Shelley's case was abolished in 1924. 33 St. 1140, Section 57-2 of the 1952 Code. The enactment of this legislation was prompted by the fact, generally recognized in all of our decisions, that the application of the rule frequently defeated the intention of the testator. As pointed out in McLure v. Young, 3 Rich.Eq. 559, 'It is a rule of tenure, which is not only independent of, but generally operates to subvert, the intention.' In Hull v. Hull, 2 Strob.Eq. 174, the Court said: 'The rule is a rule of property, and not of construction: that is, if the terms of the instrument make a case which falls within its operation, it will operate notwithstanding a persuasion may exist that such was not the intention of the grantor or testator. The general intention of the law must prevail over his particular intention.' While the rule has been criticized by some of our ablest Judges (see opinion of Judge O'Neall in Buist v. Dawes, 4 Rich.Eq. 421) and followed at times with reluctance, it has been consistently applied where apt words were used to create a fee conditional estate. But out many decisions on the subject illustrate the difficulty frequently encountered in determining in a particular case whether the words used demanded application of the rule. All the cases cannot be reconciled. As stated in McLure v. Young, supra, 'There seems to have prevailed an unceasing conflict between the obligation to observe a technical rule and a solicitude not to defeat the obvious intention of the testator.'

The initial inquiry in a case of this kind is the intention of the testator, for the rule in Shelley's case 'is not properly a matter to be considered until the meaning of the instrument has been ascertained under the rules of construction. When the intention of the grantor or devisor has been ascertained under the ordinary rules of construction, then the question properly arises, does that intention violate the rule of law in Shelley's case?' Duckett v. Butler, 67 S.C. 130, 45 S.E. 137. To the same effect, see First Carolinas Joint Stock Land Bank of Columbia v. Ford, 177 S.C. 40, 180 S.E. 562, and First Carolinas Joint Stoc Land Bank v. Deschamps, 171 S.C. 466, 172 S.E. 622.

We, therefore, proceed to determine the intention of the testatrix by the language used in Item 5 of her will. The devise is to Della Moneyham 'for life only and then unto the lawful issue of her body, and if she should die without children then to Robert Harper's children, share and share alike.' It is conceded that the words, 'for life only and then unto the lawful issue of her body', standing alone would have created a fee conditional estate. The storm center of this controversy is as to the effect of the superadded words 'if she should die without children' upon the meaning of the term 'lawful issue.' Respondents contend that the word 'issue' should be construed as synonymous with 'children', and was used to indicate a new stock of inheritance.

While it has been stated that the word 'issue' is not as strong as a word of limitation as the words 'heirs of the body', Whitworth v. Stuckey, 1 Rich.Eq. 404; McIntyre v. McIntyre, 16 S.C. 290; Adams v. Verner, 102 S.C. 7, 86 S.E. 211, the former without qualification will be generally construed to have the same import as the words 'heirs of the body.' Lucas v. Shumpert, 192 S.C. 208, 6 S.E.2d 17, 19. The two terms are generally regarded as equivalent in a will. Rembert v. Vetoe, 89 S.C. 198, 71 S.E. 219, 2 A.L.R. 918. In Lucas v. Shumpert, supra, the Court said: 'As used in a will, designating beneficiaries, the word 'issue' is ordinarily a word of limitation and not of purchase, and has for its primary or general meaning 'heirs of the body', or lineal descendants generally. * * * And there is always a strong legal presumption that these words, or equivalent expressions, have been used in their technical sense as denoting the whole of the indefinite line of inheritable succession. They will not otherwise be construed unless it manifestly appears that such was the intent of the testator.' In Dixon v. Pendleton, 90 S.C. 8, 72 S.E. 501, 502, 2 A.L.R. 915, the Court said: 'The words 'child,' 'son,' daughter,' are the common words in which men think and speak of their immediate offspring, and, when the word 'issue' is used either in thought or expression, it almost invariably denotes an intention to include not only children, but other lineal descendants. Hence issue should not be held to mean children unless the context clearly indicates that restricted meaning.' In Holman v. Wesner, 67 S.C. 307, 45 S.E. 206, we find the following: 'The words 'issues of the body,' like 'heirs of the body,' mean all lineal descendants to the remotest posterity, and are words of inheritance, and not of purchase, unless the instrument shows they were used in a restricted sense, as to indicate 'children."

While issue is generally regarded as a word of limitation, it may be used as a word of purchase. It is always open to inquiry whether the testator used the word 'heirs' or 'issue' according to its strict and proper acceptation, or in the more inaccurate sense to denote 'children'. Duckett v. Butler, 67 S.C. 130, 45 S.E. 137. If from superadded expressions, or from the context, or from other parts of the will, it is manifest that the testator used the term 'issue' as synonymous with 'children', or intended to describe a class of persons to take at a particular time, issue will be construed as a word of purchase, and not of limitation. McLure v. Young, supra, 3 Rich.Eq. 559; Rowe v. Moore, 89 S.C. 561, 72 S.E. 468; Guy v. Osborne, 91 S.C. 291, 74 S.E. 617; Mitchell v. Mitchell, 129 S.C. 321, 123 S.E. 854. Conversely, the word 'children', which is primarily a word of purchase and not of limitation, is sometimes used in the sense of 'heirs' or 'heirs of the body', or 'issue' and when so used will be construed as a word of limitation in order to carry into effect the intention of the testator. Dillard v. Yarboro, 77 S.C. 227, 57 S.E. 841; Simpson v. Antley, 137 S.C. 380, 135 S.E. 469; Hutto v. Ray, 192 S.C. 364, 6 S.E.2d 747.

Reverting now to the devise under consideration, it is conceded, as it must be, that if the superadded words be disregarded and the devise considered only as one to Della Moneyham 'for life only and then unto the lawful issue of her body', the rule in Shelley's case would apply. While the question is a close one, we do not think the superadded words are sufficient to overcome the strong presumption that the word 'issue' was used in its technical sense as denoting the whole of the indefinite line of inheritable succession. We cannot say that it manifestly appears that the testatrix intended to use the word 'issue' as meaning children. It is our view that the superadded words are equally, if not, more, susceptible to the construction that the testatrix intended that the limitation over was to be effective in the event of Della Moneyham dying 'without issue.' In other words, we think the more...

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