Supreme Court of South Carolina, 1918

Riley v. Lewis

Supreme Court of South Carolina · Decided August 31, 1918 · No. 10078 · Gage

96 S.E. 613; 110 S.C. 375; 1918 S.C. LEXIS 70 (South Eastern Reporter)

Counsel

Messrs. Carter Carter , for appellants, cite: As to the standing of a child "en ventre sa mere:" 18 S.C. 47 ; 16 Am. E.E.L., 2d Ed., p. 258; Tiedeman on Real Property, sec. 481; Tiffany on Real Property, vol. I, p. 293; 29 Am. Eng. E. Law, 2d Ed., p. 93. As to the substitution of the word "and" for the word "or:" 64 S.C. 220 -221; 4 S. C . 84. Mr. J. Henry Johnson , for respondents, cites: As to questions of fact found by the master and concurred in by the trial Judge: 103 S.C. 307 ; 88 S.E. 354 ; 101 S.C. 362 ; 85 S.E. 900 . As to the meaning of the word "issue" in the deed: 91 S.C. 300 ; 74 S.E. 375 . Whatever children were intended to be included within the terms of the instrument ; 1 Brev. 248; 1 Spear 240; 7 Rich. Eq. 425; 28 S.C. Reprint 152.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Gage.

The action is for partition, and the appeal makes two questions:

1.' The master and Circuit Court both concluded that a sale ought to be had in lieu of partition in kind; and exception has been made to that. We find no ground upon which we ought to disturb that conclusion, and we shall not.

2. The second question involves the application of the words of a deed to the circumstances of the case. The deed was made to Roberts and Celia, then man and wife, “and *377 the present or future issue of their bodies, exclusive of all other persons.” At the execution of the deed Roberts had children by a former wife, and Celia had children by a former husband; but they had then no child by each other. Sixteen days after the execution of the deed Celia bore a child, and later on another; but both of these died, and Roberts and Celia are dead. The question is, Did the words of the deed before quoted include the children Roberts had at its making, and the children Celia had at its making? The master concluded that they did not; the Circuit Court held that they did. We are of the opinion the Court is right. The appellant recognizes the force of the word “present” in the disputed clause; and to escape that, it is urged the grantor had in mind the unborn child of Celia, and spoke of it as present because of the right of such child to inherit. We think that construction of the word is strained. It is more likely the grantor meant present to refer to those children of Roberts and those children of Celia alive when the deed was made, and meant further to include that child of the two about to be born.

The decree of the Circuit Court is affirmed.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.