Lawrence v. Burnett
Lawrence v. Burnett
Opinion of the Court
The opinion of the Court was delivered by
This is an action for partition of 185 acres of land. The defendant, Wade P„ Gowan, claimed 62 acres of the tract in severalty, and, failing in that, he claimed an undivided two-sevenths interest in said 62 acres. His claims are based upon these facts:
*419 William Gowan, the common source, had seven children, among them a son, Simeon, and a daughter, Nancy Bishop. In 1867 he executed (except delivering) a deed to Simeon to 198 acres by way of advancement, to be accounted for at $400 on settlement of his estate. The granting and habendum clauses read:
“I do hereby convey and deed and release unto my son, Simeon, the above lands during his natural lifetime, and at his death to pass to his wife during her widowhood, at her death or marriage to another, if the said Simeon should die without child, then and in that case, when his widow should die, or marry, the lands to pass back to my estate as a portion of the same. To have and to hold all and singular the rights and titles as before mentioned unto the said Simeon and his children, if he has any, and if not the land to pass back to my estate as above stated.”
In 1876 William made his will, which contains the following provisions that are pertinent to this inquiry:
“Item 4. * * * My executors will divide my estate among my children and grandchildren in equal shares, as follows:
“Item 5. I give my son, Simeon Gowan, 1 share, including four hundred dollars already advanced to him in land.”
“Item 12. When my estate comes into the hands of my executors, I will that they deliver the titles already executed by me to the four hundred dollars worth of land advanced to Simeon, Nancy and Thomas (the titles now being in my possession).”
In 1878 William executed two other deeds to’Simeon, conveying parts of the same tract. One was a deed to 12j4 acres, which was delivered and recorded. The other was a deed to the residue, I85j4 acres, which was a copy of the deed of 1867, except the description of the land. This deed, like that of 1867, was not delivered, but was kept by *420 William, and after his death both deeds were delivered to Simeon, pursuant to the directions of testator in item 12 of the will. In 1879 William added a codicil to his will, but made no change in the devise to Simeon, and died in the latter part of the same year. In 1885 Simeon mortgaged 62 acres of the 185-acre tract, and appellant acquired title from the purchaser at the sale for foreclosure. In 1897 Nancy Bishop executed the following assignment to appellant of her interest in the 62 acres:
“State of South Carolina, Spartanburg county: We, the undersigned parties named, do hereby sign all our right, title and interest which we have, or may hereafter have in one lot or parcel of 61 acres of land, to W. P. Gowan, his heirs or assigns. The said lot or parcel of land is the same piece and parcel of land which W. P. Gowan now owns, the same shall be binding on ourselves, our heirs, executors and administrators. Dated December 9, 1897. N. N. Bishop.”
Nancy predeceased Simeon, who died in 1909, without having had a child. At Simeon’s death his widow took possession of the 185-acre tract, including the 62 acres theretofore held by appellant, and retained possession until her death. Appellant contends that, under item 5 of the will, Simeon took the fee, and, therefore, his title to the 62 acres under the foreclosure sale is good; and, if not, that Simeon took only a life estate, and the remainder, being undevised, descended to the heirs of William at his death and Simeon inherited one-seventh, which he acquired under the foreclosure sale, and Nancy Bishop one-seventh, which he acquired under her assignment. The Court held that the limitation contained in the deeds of 1867 and 1878 was incorporated into the will by reference, and construed it as a fee conditional. It followed that, as Simeon never had a child, the condition was not performed, and the remainder reverted to those who were heirs of William at Simeon’s death, and, *421 therefore, that appellant took nothing either from Simeon or Nancy.
Now, bearing in mind the well settled rule that where an estate is once given by words of clear and ascertained legal significance, it will neither be enlarged nor cut down by superadded words in the same or subsequent clauses of the will, unless they raise an irresistible inference that such was the intention of the testator (Adams v. Verner, 102 S. C. 7, 86 S. E. 211, and cases cited), we pass to the consideration of the habendum clause. In that clause we find a direct gift to Simeon and his children, if he has any, and if not, the land to revert. While this clause shows a clear intention to benefit the children of Simeon, if he should have any, it, too, negatives the idea that they were to take in indefinite succession from Simeon, but rather as direct beneficiaries under the will, or as purchasers. So there is nothing in the habendum to warrant the inference of an intention to enlarge the life estate expressly given to Simeon in the granting clatise. The intention clearly expressed in both clauses is that, if Simeon should have no children, the land should' revert. There was, therefore, no intention that Simeon should have an estate of inheritance.
To support its conclusion, the Court below relied upon Dillard v. Yarboro, 77 S. C. 230, 57 S. E. 841. The limitations and the circumstances of that case were very different. There the grant was to Y. and her children and her assigns forever, and all the circumstances showed an intention to convey the fee. There was- no express life estate given, and no disposition of the remainder after Y.’s death without children; hence the word “children” was construed to mean “heirs of her body” to give effect to the obvious intention *423 Under Reeves v. Cook, 71 S. C. 275, 51 S. E. 93, if testator had actually used the words “heirs of his body” instead of the word “children,” the following words, “if he has any,” considered in the light of the circumstances, would have restricted the generality of the words “'heirs of his body” to mean.“children.”- And so it appears that the construction adopted is untenable.
The judgment of the Circuit Court is reversed, and the case is remanded for such further proceedings as may be necessary not inconsistent with the views herein announced.
Reversed.
Reference
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- Lawrence Et Al. v. Burnett Et Al.
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- Syllabus
- 1. Wills—Construction—Deed—Incorporated in Will.—Under a wiE giving to testator’s son. one share of the estate, including land advanced to him, and instructing that the deed to such land be delivered upon testator’s death, the estate devised is determinable by the limitation in the deed, and not solely by the words of the will. 2. Wills—Construction—'Incorporation of Deed—Codicil—Repu!blication.-—A codicil held to be such a republication of a will as made the reference therein to a deed apply to a new deed to the same land made after the will, but before the codicil. 3. Wells—Construction—Fee Conditional—“Children”—'‘‘Heirs op His Body.”—Although the words “child” and “children” may be construed “heir of his body” and “heirs of his body” when necessary to give effect to testator’s manifest intention to create a fee conditional, such may not be done where it defeats his clearly expressed intention to convey a life estate with remainder to children, if any, otherwise to revert to his estate. 4. Wills—Construction—Devise op Remainder—Implication.—Where, by the granting clause of a deed incorporated into a will, testator’s son is given a life estate only, coupled with a provision if he di|ed childless the land should revert, and no provision is made of the remainder, if he should die with a child, the child cannot take as a purchaser by implication. 5. Wills — Construction'—Devise — Line Estate. — A will giving an express life estate to a son, coupled with the condition that if he die without a child the land should revert, negatives the intention to enlarge the life estate, so that the son and his children could take in indefinite succession. 6. Wills—Construction—Estates.—Where an estate is once given by words of clear and ascertained legal significance, it will neither be enlarged or cut down by superadded words in the same or subsequent clauses of the will, unless they raise an irresistible inference that such was testator’s intention. 7. Wills—Construction—Line Estate—Mortgage.—Where a son took only a life estate under a will, with remainder undevised, except upon a condition which did not happen, the reversion was intestate property, and descended to testator’s heirs at his death under the statute of distribution. 8. Wills—Assignment of Interest in Estate.—An assignment by a deviseee of her right, title, and interest in lands of the estate of her deceased father, held insufficient to convey legal title, since it was not witnessed or under seal as required by law.