Burkhalter v. Breeden ( 1931 )

I concur in the opinion of Mr. Justice Carter that the Circuit decree, dismissing the complaint, should be affirmed.

The determination of the question presented requires a construction of the will of the late Peter L. Breeden. Item 3 of the will and Items 5, 6, and 7 of the codicil are the only portions of the will that need be considered. These items, and the facts necessary for an understanding of the case, are set forth in the decree of the Circuit Court, which will be reported.

By reference to Item 3 of the will, it will be observed that testator definitely carved out two estates in the lands in question — one a life estate and the other an estate in remainder. The land in question is given to Alma E. Burkhalter "for and during her lifetime." "At the death" of Alma, it is to go to "her then living children, the child or children of any deceased child to take the share of his, her or their parent." But in the event that Alma should die "without children or lineal descendants" surviving her, the land is to go to testator's "surviving children upon all the terms, limitations and conditions as provided in this item."

It is clear the life estate definitely carved out is to continue during the lifetime of Alma; that the time for its termination and the time of the vesting of the estate in remainder is the death of Alma. No other time is fixed or contemplated for the vesting of the estate in remainder. It is equally clear that testator intended for his children to have life estates only in the direct devises to them, and also in the remainders over after the death of his children without children or lineal descendants. Effect must be given to that intention if possible.

After carving out the life estate and the estate in remainder, testator provided that the life estate was given to Alma "upon the express condition that" she "shall not in any way nor manner encumber said lands by mortgage or otherwise, and should" she "attempt to sell same, or suffer same sold by any legal process, then it is my will and I hereby cancel said life estate and will and devise said life estate absolutely and forever to the remaindermen as provided and designated in the first part of this item."

Had this last provision not been made, it is clear that Alma would have had an unconditional life estate, and that she could have enjoyed the same in possession or disposed thereof as and when she might see fit. Testator was willing and anxious for her to enjoy the same in possession, but unwilling for her to attempt to dispose thereof. In the event of any attempt to sell or encumber the said life estate by Alma, her interest therein is terminated and the life estate is devised to the remaindermen provided in the item. It is clear, then, that by "cancel said life estate" testator never meant to terminate or destroy the same, for he expressly preserved the life estate and devised it to the same parties that would take the remainder.

The estate in remainder, is a contingent remainder with a double aspect. Faber v. Police, 10 S.C. 376; McElwee v.Wheeler, 10 S.C. 392. The remaindermen are divided into two classes; the children or lineal descendants of Alma constituting the first class, and the surviving children of testator "upon all the terms, limitations and conditions as provided in this item," constituting the second class. The second class are not to take except in case of default of all members of the first class. Who are to take as remaindermen, then, cannot be determined until the death of Alma. The remainder cannot vest until that time.

Upon the attempted conveyance by Alma to plaintiff of the life estate, her interest therein ceased and the legal title thereto vested, not by the deed, but under the will, in plaintiff as the only member in esse of the first class of remaindermen. He has not an absolute estate in such life estate pur auter vie, however, as it is liable to open to admit other child or children that Alma may have. It is also liable to be defeated upon the death of plaintiff and any other child or children Alma may have without lineal descendants, prior to the death of Alma. In such event, the legal title to the life estate would pass to the member or members in esse of the second class of remaindermen.

Since the life estate was not terminated upon the attempted conveyance by Alma, but expressly devised to others, it follows that there was, and will be at all times, from the date of the death of testator until the death of Alma, a life estate to support the contingent remainders, and since the remainder cannot vest until the death of Alma, it follows that there can be no merger of the life estate and the remainder — the two estates can never be vested at the same time in any one person or persons, as the date fixed for the termination of the life estate is the same date fixing the vesting of the remainder, to wit, the death of Alma.

Since the devise of the remainder in case of Alma's death without children or lineal descendants is not to testator's surviving children absolutely, but to them upon "all the terms, limitations and conditions as provided in this item," it follows that the default herein by the now living children of testator avails plaintiff nothing at this time. Those children may not be living at the time of the vesting of the remainder. If they are, the estate they would take must be determined by reference to the terms, limitations, and conditions of this item as to the direct devises, and by those terms, limitations, and conditions testator's children are given life estates only, with remainders to their then living children, etc. The only effect the default of testator's now living children could have would be to estop them, in case they be living at the death of Alma, as to their life estates in the remainder of the lands in question. The father of respondents now being dead, they would take directly as remaindermen in the event of the death of Alma without children or lineal descendants. They are, therefore, in no wise affected by the default of the now living children of testator.

It is clear then that by Item 3 of the will, the interest of Alma in the life estate was to continue so long as she did not sell or incumber, or attempt to sell or incumber the same. That upon such an attempt to sell or incumber the same, the said life estate, ipso facto, passed to the designated remaindermen.

It is contended, however, that the codicil shows that testator intended to terminate the life estate upon an attempted conveyance or incumbrance thereof and to vest the estate in remainder in the remaindermen at that time. By reference to that instrument, it will be seen that testator ratified and confirmed the will "except as the same is altered and changed" by the codicil; that in Item 5 he provided that, "If any one of my children shall voluntarily attempt to sell or encumber by mortgage his or her interest in said lands, * * * then the life estate of such child shall eo instanti end and determine, and the estate provided in this will for the remaindermen shall immediately vest in such remaindermen." Reading this provision in connection with the other provisions of the codicil and of the will, it is clear that testator did not change, or intend to change, the provision made in Item 3 of the will. He only meant that the interest of the child so selling the life estate should cease, and the devise of the life estate in such event to the remaindermen should vest. It is clear that testator did not have in mind the remainder when he made this provision. If he had had, it would have been natural for him to have said "the life estate of such child shall eo instanti end and determine, and the estate in remainder shall vest." By "estate provided in this will for the remaindermen," it is manifest that testator meant the estate forfeited by the child attempting to sell the life estate to him or her devised. He did not intend to accelerate the vesting of the remainder. Indeed, there is no provision in the will or the codicil for the acceleration of the vesting of the estate in remainder.

I am clearly of the opinion, therefore, that the decree of the Circuit Judge should be affirmed.

MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE COSGROVE concur.