Woodle v. Tilghman, No. 17500

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtOXNER; STUKES
Citation107 S.E.2d 4,234 S.C. 123
Decision Date10 February 1959
Docket NumberNo. 17500
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.

Page 4

107 S.E.2d 4
234 S.C. 123
John 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.
No. 17500.
Supreme Court of South Carolina.
Feb. 10, 1959.

Page 5

[234 S.C. 124] C. W. Derrick, Marion, for appellants.

McLaurin & McLaurin, Dillon, for respondents.

[234 S.C. 125] 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.

[234 S.C. 126] 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

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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.'

[234 S.C. 127] 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...

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6 practice notes
  • Bethea v. Bass, No. 17930
    • United States
    • United States State Supreme Court of South Carolina
    • June 12, 1962
    ...persons who are [240 S.C. 404] to take in their own right from the grantor. Hutto v. Ray, 192 S.C. 364, 6 S.E.2d 747; Woodle v. Tilghman, 234 S.C. 123, 107 S.E.2d The superadded expressions in the deed before us, from which the lower court concluded that the word 'issue' in the habendum had......
  • Bowles v. Bradley, No. 24304
    • United States
    • United States State Supreme Court of South Carolina
    • May 4, 1995
    ...Corbett v. Laurens, 26 S.C.Eq. (5 Rich.) 301 (1853); see also Bonney v. Granger, 292 S.C. 308, 356 S.E.2d 138 (1987); Woodle v. Tilghman, 234 S.C. 123, 107 S.E.2d 4 (1959). "Lineal descendants," in turn, refers to the "whole of the indefinite line of inheritable succession&qu......
  • Woodle v. Tilghman, No. 18863
    • United States
    • United States State Supreme Court of South Carolina
    • January 23, 1969
    ...1889 and probated the same year, vested an estate know as a a fee simple conditional estate in the devisee, Della Moneyham (Woodle). See 234 S.C. 123, 107 S.E.2d 4 Within the same action the plaintiffs have now served a supplemental complaint based on alleged adverse possession. There were ......
  • Smoak v. McClure, No. 17677
    • United States
    • United States State Supreme Court of South Carolina
    • July 6, 1960
    ...[236 S.C. 552] The two cases just mentioned, along with others of a similar nature, were reviewed by us recently in Woodle v. Tilghman, 234 S.C. 123, 107 S.E.2d Emphasis is also placed by appellants upon the use of the word 'and' in the habendum clause. This clause reads: 'To Ben Garris, an......
  • Request a trial to view additional results
6 cases
  • Bethea v. Bass, No. 17930
    • United States
    • United States State Supreme Court of South Carolina
    • June 12, 1962
    ...persons who are [240 S.C. 404] to take in their own right from the grantor. Hutto v. Ray, 192 S.C. 364, 6 S.E.2d 747; Woodle v. Tilghman, 234 S.C. 123, 107 S.E.2d The superadded expressions in the deed before us, from which the lower court concluded that the word 'issue' in the habendum had......
  • Bowles v. Bradley, No. 24304
    • United States
    • United States State Supreme Court of South Carolina
    • May 4, 1995
    ...Corbett v. Laurens, 26 S.C.Eq. (5 Rich.) 301 (1853); see also Bonney v. Granger, 292 S.C. 308, 356 S.E.2d 138 (1987); Woodle v. Tilghman, 234 S.C. 123, 107 S.E.2d 4 (1959). "Lineal descendants," in turn, refers to the "whole of the indefinite line of inheritable succession&qu......
  • Woodle v. Tilghman, No. 18863
    • United States
    • United States State Supreme Court of South Carolina
    • January 23, 1969
    ...1889 and probated the same year, vested an estate know as a a fee simple conditional estate in the devisee, Della Moneyham (Woodle). See 234 S.C. 123, 107 S.E.2d 4 Within the same action the plaintiffs have now served a supplemental complaint based on alleged adverse possession. There were ......
  • Smoak v. McClure, No. 17677
    • United States
    • United States State Supreme Court of South Carolina
    • July 6, 1960
    ...[236 S.C. 552] The two cases just mentioned, along with others of a similar nature, were reviewed by us recently in Woodle v. Tilghman, 234 S.C. 123, 107 S.E.2d Emphasis is also placed by appellants upon the use of the word 'and' in the habendum clause. This clause reads: 'To Ben Garris, an......
  • Request a trial to view additional results

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