Thomson v. Russell , 131 S.C. 529 ( 1925 )

June 10, 1925. The opinion of the Court was delivered by Mrs. Maria Antoinette Russell, late of the city of Abbeville, died in 1923, leaving in force a last will and testament. She left surviving her four children, to wit: Mrs. Josephine Russell Lawson, Miss Antoinette Russell, Doctor Louis Henry Russell, and Mrs. Adelaide Russell Thomson. At the time of the death of testatrix, Mrs. Lawson had five children, Doctor Russell four and Mrs. Thomson three; Miss Antoinette Russell not having married. There were also living at that time several great-grandchildren.

All parties are before the Court, and the purpose of this action is to construe the will. Testatrix was, at the time of her death, the owner of a house and lot in the city of Abbeville, known as the "home place," which is covered by paragraph two of the will. The remainder of her property consists of household effects and certain notes and mortgages, valued at about fifteen thousand dollars.

Two paragraphs of the will are before the Court for construction, to wit, the second and third, which are as follows:

"II. I desire and do devise that my daughter, Nettie Russell, shall have and enjoy our old home place and premises during the term of her natural life; and after her death, I devise the same to all my children and their issue, share and share alike, to them and their heirs forever.

"III. I desire and devise that all the rest and residue of my property, real and personal, shall go to all my children, including Nettie Russell and their issue, share and share alike, to them and their heirs forever."

Construing the will, Judge Featherstone held that under paragraph two Miss Antoinette Russell, called Miss Nettie Russell, took a life estate in the home place, with remainder after her death to the other three children of Mrs. Russell for life, with remainder after the death of each to his or her issue, as the case might be, the issue taking in remainder the share each parent held in his or her lifetime. A like construction was placed upon paragraph three of the will, it being held that each of the four children took a life estate in the property therein disposed of, and that the share which each child took for life at his death descended to his or her issue as purchasers.

The exceptions, six in number, assail this construction of the will, the sole contention of defendants appellants being that, under both paragraphs two and three of the will, the children and their immediate issue take per capita as tenants in common. It is admitted by all the parties to this action that Miss Antoinette Russell called Nettie Russell in the will, takes, under paragraph two of the will, the home place and premises during her life and has no other interest in that property.

Under the terms of this will great-grandchildren do not take. Myers v. Anderson, 1 Strob. Eq., 344; 47 Am. Dec., 537. McLure v. Young, 3 Rich. Eq., 577. Fields v. Watson, 23 S.C. 46. McIntyre v. McIntyre,16 S.C. 290. Dukes v. Faulk, 37 S.C. 255;16 S.E., 122; 34 Am. St. Rep., 745. Plaintiff contends, and we believe, defendants concede that when the words "share and share alike" and the words "to them and their heirs forever," following a gift to a person and his "issue" or "heirs of the body," are used, that the words "issue" and "heirs of the body," are changed from words of limitation, their ordinary meaning, and become words of purchase. This doctrine is supported by numerous authorities: McIntyrev. McIntyre, 16 S.C. 290. Hay v. Hay, 4 Rich. Eq., 387. Simons v. Bryce, 10 S.C. 366. Henry v.Stewart, 2 Hill Law, 330. Simms v. Buist, 52 S.C. S.E., 959; 2 A.L.R., 918. Myers v. Anderson, 1 Strob. Eq., 344; 47 Am. Dec., 537. McLure v. Young, 3 Rich. Eq., 576. Dukes v. Faulk, 37 S.C. 265; 16 S.E., 122; 34 Am. St. Rep., 745.

So that when testatrix devised her property to her children and their issue, and added the words "share and share alike, to them and their heirs forever," the rule in Shelley's Case did not apply, and the "issue" took as purchasers. The question then before the Court is, what interests do the children and grandchildren of testatrix take under the will, and when do they take?

Plaintiff contends that the word "issue," as used in the will in question, must be construed as meaning "heirs of the body," and, that being true, no person could take under this designation along with children at the death of testatrix, for the reason that at such time none of the grandchildren would fall within the description "issue" or "heirs of the body." While this position is plausible, it is not convincing, nor is it supported by authority.

The word "issue" in will is generally equivalent to heirs of the body, though the latter are stronger and more technical words. Whitmore v. Stuckey, 1 Rich. Eq., 412.Adams v. Verner, 102 S.C. 7; 86 S.E., 211. It may mean children. Burleson v. Bowman, 1 Rich. Eq., 111. Williamsv. Kibler, 10 S.C. 426. It embraces grandchildren. Rutledgev. Rutledge, Dud. Eq., 201. Glenn v. Glenn, 21 S.C. 308.Purcell v. Purcell, Riley Eq., 282.

It is said in Mendenhall v. Mower, 16 S.C. 303, that the word "issue" means: (1) A class of persons to take as joint tenants with other parties named. (2) A class who are to take at a definite period as purchasers. (3) An indefinite succession of lineal descendants who are to take by inheritance.

Plaintiff contends, further that the Court should read into both paragraphs of the will the words "for life, and after their death to their" issue. If the Court should do this, it seems to me that it would be usurping the functions of testatrix. Courts are not charged with making, but they are charged with construing wills. It often happens that in construing wills the Courts are compelled to interpolate words in order to arrive at the true intention of the testator. But this is never done where there is no ambiguity in the will. To my mind the terms of this will are clear. I think testatrix meant by the word "issue" to embrace grandchildren. This view violates no rule of construction. It applies the definition to the word issue that is authorized by the decisions of our Courts, and. I submit, carries out the intention of a testatrix. Testatrix knew how to create a life estate. This is shown by reference to paragraph two of the will. If she had desired to create a life estate in her children, with remainders to their issue as purchasers, she would, doubtless, have done so just as she did in the case of Miss Antoinette Russell. She did not see fit to do so, and this Court must construe the will so as to carry out her intention.

We think the following authorities are applicable to the facts of this case: Porter v. Lancaster, 91 S.C. 300;74 S.E., 374. Hagan v. Hanks, 80 S.C. 94; 61 S.E., 245.Conner v. Johnson, 2 Hill Eq., 41. Dukes v. Faulk, 37 S.C. 255;16 S.E., 122; 34 Am. St. Rep., 745. Reeves v.Cook, 71 S.C. 275; 51 S.E., 93. Henry v. Archer, Bailey Eq., 543. Wessenger v. Hunt, 9 Rich. Eq., 459.

In Porter v. Lancaster, supra, the deed conveyed land to grantor's wife and the issue of her body by him.

"To have and to hold unto the said P. and the issue of her body * * * their heirs and assigns forever."

Held: deed carrier the fee to P. and the issue mentioned living when deed executed as tenants in common.

In Hagan v. Hanks, supra, the limitation reads:

"Share and share alike, between all my living sisters, or the lawful bodily heirs of any who may not be living."

Court held that division should be made between living sisters and the lawful bodily heirs of deceased sisters per capita.

In Connor v. Johnson, Harper, writing the opinion, it is said:

"I consider it to be very well settled, that if there be a devise to an individual designated by name, and to other individuals designated as a class, as to A. and the children of B.; or if it be to the children of A. and the children of B., all the individuals take equally, and per capita. So, if the devise is to the next of kin, they will take per capita, and not per stripes [citations]."

In Dukes v. Faulk, the devise was to "heirs of the body, share and share alike, their heirs and assigns." After discussion of the authorities, the Court said (at page 266 [16 S.E., 127]):

"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 ``equally,' or ``in equal 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 stripes, and that the estate is one of purchase and not of descent."

In Reeves v. Cook the deed was to A. and the heirs of her body which she has or may have by B. her husband. Held: that a fee simple was conveyed to A. and her children by B. as tenants in common. His Honor, the Circuit Judge, laid much stress on the words "them" and "their" appearing at the close of each paragraph. He held that the words them and their preceding the words "heirs forever" at the end of the two clauses in question modify and relate back to the word "issue" and not to the word "children." We do not agree with the construction his Honor has placed upon these words. Our construction of these words in the connection in which they appear is that they relate back to the words "children" and "issue" or, as we have construed "issue," to "children" and grandchildren."

The exceptions to the decree of the Circuit Judge are sustained.

Reversed.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and MARION concur.

MR. JUSTICE FRASER dissents.

MR. JUSTICE COTHRAN did not participate.