Dukes v. Faulk

The opinion of the court was delivered by

Mu. Justice Pope.

This action came on to be heard by his honor, Judge Witherspoon, at the fall term, 1891, of the Court of Common Pleas for Charleston County, and on the 4th day of January he filed his decree. From this decree an appeal has been taken by two sets of defendants, viz., the Thomas minors and the Dukes minors. There is no question of fact in *263 volved; the appeal relates solely to questions of law, which grow out of the following provision of the last will and testament of Mrs. Dorcas Elmore, of the city of Charleston, in this State, who died on the 10 January, 1827, to wit: A house and lot, “for the sole, separate, and exclusive use, etc., of my stepdaughter (daughter-in-law) Emelia and my son Stent, during their natural lives, and to be in no wise subject to his debts, control, or intermeddling whatever, and after the death of my said step-daughter (daughter-in-law) and my son Stent, it is my will that it shall descend to such heirs as my said stej:>daughter (daughter-in-law) Emelia and my son Stent shall have living at the time of their death, begotten by them, share and share alike, to them, their heirs, executors, administrators, and assigns, forever. And in the event of there being but one, then, and in such case, he or she shall be entitled to such share as his, her, or their ancestors would have been entitled if then living, and should my said step-daughter (daughter-in-law) Emelia leave no heirs, begotten by my said son Stent, capable of inheriting, then it is my will that the said property sba.ll descend to my daughter Ann Eliza, wife of A. Gilliland, ” etc.

A brief reference to the facts may not be amiss just here. Stent Elmore died many years ago. Emelia, his wife, lived until the 17 September, 1889. The children born to Stent and Emelia were three, James W. Elmore, Pamelia E. Elmore, and Mary Ann Elmore, all of whom died during the lifetime of the surviving life tenant, Emelia Elmore.' James W. Elmore died in 1856 or 1857, unmarried and without issue. Pamelia Elmore, having intermarried with one Thomas Alexander, died 28 April, 1872, leaving two children, both of whom survived the life tenant, one of whom, Florence Faulk, has died, leaving a husband and five children. Mary'Ann Elmore, who had married one Dukes, died 17 July, 1888, leaving children and grand-children. The names of all these parties are set forth carefully in the “Case,” and it will be unnecessary to state them again, especially as the master’s report and the decree of the Circuit Judge must be printed. All the children being-dead, and there being children and grand-children of such children of Emelia aud Stent Elmore alive at the death of the *264 surviving life tenant, this contest has arisen as to the distribution of the proceeds to arise from the sale of the house and lot in question.

Three views have been p resented to this court for its consideration : 1. That the proceeds of sale shall be so divided as that the children and grand-children of Mrs. Mary Ann Dukes shall receive one-half thereof, and the other half to be divided among the children and grand-children of Mrs. Pamelia Alexander per stirpes. 2. That such proceeds shall be divided amongst the ten parties who stood, on the death of the life tenant, as heirs of her body, under the laws of this State, per capita. 3. That such proceeds shall be divided among all the grandchildren and great-grand-children of the life tenant, per capita.

"We will first consider the general principles of our laws pertaining to an estate, provided for such persons as shall, at a particular time named by the testator, sustain a particular character. Then we will briefly notice the particular circumstances that are alleged to control the distribution here.

1 I. Our act of 1791 wrought a great change in the laws of inheritance that formerly prevailed here on the same subject, and derived from the mother country, and it was to be expected that the definition of the. term “heirs” should be thereby changed. Accordingly, we find, in the decisions of our courts, that “heirs” came to mean such persons in whom real estate vests by operation of law, on the death of one who was last seized. Seabrook v. Seabrook, McMull. Eq., 206, 207; Templeton v. Walker, 3 Rich. Eq., 550. It was stated in the case first quoted : “The court is unable to find any better definition of an heir than the person in whom real estate vests by operation of law on the death of one who was last seized. This law varies in different countries, in the same country at different periods, and in the same country in relation to different estates. By the common law, the father or grand-father would be excluded. In England, the estate in general descends to the eldest son, to the exclusion of daughters and other sons. By the laws of South Carolina, a more equitable distribution both of real and personal estate is provided. In order to ascertain who is the heir, it is necessary only to inquire to whom, by the *265 law of the land, would the estate pass in case of intestacy.” In the second case cited this language occurs: “The term heirs is inapplicable to the succession to personal estate; and even as to real estate, we have no other heirs except the haeredes facti of our statute of distributions. So that ordinarily we must look to the statute of distributions to ascertain the persons who are entitled to the character of heirs, as well as the shares to be enjoyed by them.

2 When, in a grant or devise, words are used, such as “heirs at law,” “legal heirs,” “heirs of the body,” or kindred phrases or terms, betokening a grant, or gift, or devise to such as a class, to take effect at a particular time, such parties took as purchasers, and not by descent, especially if the estate to be vested was made absolute by the additional words, “their heirs and assigns forever.” More frequently the question raised in connection with such words has been, the method of distribution of the estate so vested among the individuals or members of the class, and, for a while, in this State, this doctrine was unsettled. In Campbell v. Wiggins, Rice Ch., 10, it was held to be a division per capita. However, this view, though much shaken, still prevailed in Lemacks v. Glover, 1 Rich. Eq., 141. But at length, in the case of Templeton v. Walker, supra, decided in 1850 by the Court of Errors, it was held, that where no words were used in the grant or devise providing for a different distribution, the rule as laid down in our statute of distributions, in cases of intestacy, should not only determine the persons composing the class, but should also fix the share of each. In the words of that decision : “We are justified in establishing as a general rule, in cases like the one before us, that the partition shall be per stirpes.” And so the law remains until this day.

3 It will be observed, that such last announced rule only applies to those cases where the grantor or devisor has not indicated a different mode of partition; it is always admitted, that such grantor or devisor has a perfect right, in the instrument that announces his determination on this point, to fix the shares of each one of a class, provided, always, the same is not in conflict with the law of the land. *266 Chief Justice McIver, in announcing the judgment of this court in the case of Allen v. Allen, 13 S. C., 512, says: “If, therefore, the gift is to a class of persons designated as heirs of a particular person, then, as it is necessary to resort to the statute to ascertain who are the individuals composing the class, resort must also be had to the statute to determine how, or in what proportions, such individuals shall take. This is upon the presumption that the donor, having by implication, at least, referred to the statute, as to the persons who are to take, also intended that reference should be had to the statute to determine the proportions in which they should take, unless he expresses a different intention. But when he prescribes a different mode of distribution, then no such presumption can arise, and the distribution must be made in the manner prescribed." (Italics ours.) And so, too, in the case of Kerngood v. Davis, 21 S. C., 183, where Mr. Justice McGowan delivers the judgment of the court, this language is used (p. 207): “In such cases, after much discussion and some difference of opinion, it seems to have been settled as a rule of construction, that, 'wherever, by the terms of description in a devise or grant, resort must be had to the statute of distributions for the purpose of ascertaining the objects of the gift, resort must also be had to the statute to ascertain the proportions in which the donees shall take, unless the instrument making the gift indicates the intention of the donor, that a different rule of distribution shall be pursued.’ Campbell v. Wiggins, Rice Ch., 10; Lemacks v. Glover, 1 Rich. Eg., 141; Rochell v. Tompkins, 1 Strob. Eg., 114; Collier v. Collier, 3 Rich. Eg., 555.”

We think we may now announce as the law of this commonwealth, that, when the words, “heirs of the body,” occur in a devise, accompanied by the words, “share and share alike,” or “egually,” or “in egual parts,” or kindred words, and also the words, “their heirs, executors, administrators, and assigns,” that we must look to the statute of distributions of our State for the parties who shall answer the description, and, therefore, take the devise, but that the method of distribution is fixed by the devise itself to be per capita, and not per stirpes, and that, the estate is one of purchase, and not of descent. It *267 seems to us, that the “heirs of the body”' must be persons, not only who answer the requirement of lineal descendants of the parent stock, but, also, such persons who would stand, at the date of the death of life tenant, as an heir, under the provisions of our statute of distributions. In Templeton v. Walker, 3 Rich. Eq., 550, supra, it is said: “Ho one can take as heir of the body of another, unless he fulfil the description, and is not only such person as would take the real estate of that other, under our act of distributions, but, likewise, a lineal descendant.” In Lemacks v. Glover, supra, it is said: “In Campbell v. Wiggins, the legislature has made a grant to the heirs at law of Blake Baker "Wiggins, deceased, and it was held, that the grand-children as well as the children were entitled. In this case the description is restricted to ‘heirs of the body.’ This includes all the lineal descendants of Mrs. Jane Glover, who were, also, at the time of her death her ‘heirs,’ according to the laws of the State; and, it may be added, it includes only such lineal descendants who are also heirs. In the language of Matthews v. Paul, 3 Swanst., 339, the rule must be the same both as to persons excluded as well as those included. They must answer the entire description at the period fixed.”

To illustrate our meaning by stating the facts in the last quoted case. The will of Peter Sinkler gave the use of certain property to his sister, Jane Glover, for life; Mrs. Glover, at the time of her death, had but one child, Dr. Glover; testator, after the death of the life tenant (Mrs. Glover), bequeathed such property ‘ ‘to the heirs of her body, to them and their heirs andassigns, forever.” Mrs. Glover died fifty-one years after her brother’s death. She had four other children born to her, all of whom, but one (Mrs. Lemacks), died before Mrs. Glover, the life tenant, and all were survived by children. The question was made as to the distribution. It was held, that Dr. Glover took one share, Mrs. Lemacks one share, and each grand-child who was the child of a deceased child, took one share each. Both Mrs. Lemacks and Dr. Glover had children, but they were denied participation in the estate. Why? Because, at the death of Mrs. Glover, the life tenant, although her lineal descendants, they were not her heirs, under our statute of distri *268 butions; their respective parents, Dr. Glover and Mrs. Le-macks, were alive, and were such beirs.

4 Furthermore, in construing such a devise as that under consideration, relation must be had to the circumstances that attend the event of the falling in of the life estate, rather than those that attended the death of the testator. There is no reason in our law to favor such devise being intended for children, to the exclusion of, or preference to, other lineal descendants. If the testator desired such result, apt words therefor should have been used. The words of this devise plainly import, that those lineal descendants who should survive the life tenants should take; survivorship was an element in the power to take. No estate was provided for those who did not so survive the life tenant. The estates provided were contingent remainders, not vested, and it is felt that there is no need to elaborate these propositions, since the decisions of this court, in the cases of Dickson v. Dickson, 23 S. C., 216, and Roundtree v. Roundtree, 26 Id., 450.

5 II. Having disposed of the questions suggested by the appeal here, so far as the same are of a general character, it will be necessary to refer to so much of the Circuit decree as seeks to give some controlling influence to the last clause, “and in the event of there being but one, then, and in such case, he or she shall be entitled to such share as his, her, or their ancestors would have been entitled to, if living.” As remarked at the bar, no such contingency as contemplated by this language has occurred, whether you make it read, child of Emelia, or child of a child, or child of a child’s child. The testatrix could not have meant Emelia’s child, for, in that event, there could have been no ancestor who took a share, for certainly Stent and Emelia took nothing that passed to the “heirs of their bodies” through them. And, if it meant grand-child, it would be just as ineffective, for it was only in the event there was only one such that anything like a per stirpes distribution was contemplated. The result of our careful attention to these matters is, that we conclude, that the following lineal descendants of Emelia and Stent Elmore alone take, and that, too, per capita, that is to say: Mrs. Faulk, Henry *269 Alexander, Oscar F. Dukes, Elmore Dukes, Teressa G-. Dukes, James W. Thomas, Ancrum O. Thomas, George V. Thomas, Leo D. Thomas, aud Elmore S. Thomas, the share (1-10) of Mrs. Faulk being divisible amongst her husband and five children, according to our statute of distribution.

It follows, therefore, that it is the judgment of this court, that the judgment of the Circuit Court be reversed, aud the cause be remanded to the Circuit Court, to carry into effect the principles herein announced.