Durant v. Reames , 141 S.C. 13 ( 1927 )

August 25, 1927. The opinion of the Court was delivered by On November 23, 1904, the Supreme Court handed down its opinion in the case of Parrott v. Barrett, reported in 70 S.C. 195; 49 S.E., 563. The action in that case was for the partition of a tract of land containing 889 acres, the property in his lifetime of Captain James Rembert, who died testate about the year 1858. In his will he made the following devise to his daughter, Jane Barrett:

"Second: I will, devise and bequeath to my beloved daughter, Jane Barrett, all of that tract of land lying towards the south of my plantation, known as the Green tract of land, to and for the natural term of her life and no longer; to her sole and separate use, to be in no way subject to the debts, contracts or control of her present or any future husband; and at and immediately upon the death of my said daughter, Jane Barrett, I give, devise and bequeath the said tract of land to the heirs of her body who may be living at the time of her death, share and share alike; to their heirs and assigns forever. To be esteemed and regarded as of the value of five thousand dollars."

Jane Barrett, the daughter, died in 1901, leaving six children, and four grandchildren who were the children of a predeceased son. After her death, the action was brought by the four grandchildren, their contention being that the words used by the testator, "to the heirs of her body who may be living at the time of her death," should be construed to include not only her children living at the time of her death, but such of her grandchildren living at that time as were children of a predeceased son or daughter; and that the added words, "share and share alike," could only mean that such grandchildren would take under the will per capita, and not per stirpes.

Hon. George W. Gage, who afterwards became a member of this Court, heard the case on circuit, and sustained the contention of the plaintiffs in all particulars, in the following language:

"I am of the opinion that under the will of James Rembert the daughter, Jane, took a life estate, and that at her death in 1901 the title was then divisible in equal shares betwixt the six children of Jane, and the plaintiffs, her four grandchildren, that is to say: Each was entitled to have one tenth of the whole.

"It was argued at the bar (by Mr. Livingstone) that the testator intended the share of each child of Jane to go to the children of each child, and that he did not use ``heirs of her body' and ``share and share alike' in a technical sense. And to give strength to that contention, other parts of the will were cited, wherein the testator directed a distribution ``among by heirs according to the provisions of the act generally termed the statute of distributions'; but, on the other hand, the use by the testator of different language for different devises, goes to show he had different purposes and not one purpose. The language of the will is too plain for construction, strong as the argument is. Kerngood v. Davis,21 S.C. 207."

On appeal, the Supreme Court, in a well-considered opinion, unanimously sustained the findings of the Circuit Judge in his construction of the will, saying:

"We agree with the Circuit Court in the construction of the will. The plaintiffs, as children of Charles S. Barrett, the son of Jane Barrett, their father having died before Jane Barrett, answered the description of heirs of the body of Jane Barrett, and the will expressly directing that the heirs of her body living at her death should take share and share alike, the plaintiffs take per capita and not per stirpes, and so are under the will each entitled to one tenth of the tract of land in question. This conclusion is fully sustained by the cases of Kerngood v. Davis, 21 S.C. 206; Dukes v.Faulk, 37 S.C. 265 [16 S.E., 122; 34 Am. St. Rep., 745]."

After a lapse of more than 20 years, under apparently similar circumstances, this Court is now asked to construe another clause of the will of Captain James Rembert, in which he devised to another daughter, Harriett Abigail DuRant, a tract of land therein designated. With the exception of the names of the devisees and the description and names of the tracts of land devised, the two clauses of the will are practically identical.

We quote so much of the first clause as is pertinent to this decision:

"First: * * * I will, devise and bequeath to my beloved daughter Harriett Abigail DuRant to and for the natural term of her life and no longer to her sole and separate use to be in no way subject to the debts, contracts or control of her present or any future husband and at and immediately upon the death of my said daughter, Harriett Abigail DuRant, I give, devise and bequeath the said tract of land to the heirs of her body who may be living at the time of her death share and share alike to them, their heirs and assigns forever, to be esteemed and regarded as of the value of five thousand ($5,000) dollars."

Mrs. DuRant died in 1924 and thereafter this action was brought by the children of James A. DuRant, a predeceased son of Harriett Abigail DuRant, against the defendants, a number of whom are children of Mrs. DuRant, for partition of the real estate described in the complaint, containing about 2,200 acres, and being the lands devised in the clause of the will above quoted. Later, Combahee Fertilizer Company was substituted as plaintiff.

It appears that the contentions here of the grandchildren are the same that were made in Parrott v. Barrett, supra; namely, that the words, "to the heirs of her body who may be living at the time of her death," include not only the children of Abigail DuRant living at the time of her death, but also such of her grandchildren as are children of a predeceased son or daughter; and that the additional words, "share and share alike," can only be construed to mean that such grandchildren take per capita, and not per stripes.

We do not deem it necessary to discuss at length the questions raised by this appeal. We are satisfied with the construction of the will given by the Court in the Barrett case; it is sound and supported by good authority. The clause now before us being practically identical in language with that construed in the Barrett case, the will must receive in this case the same construction, unless there appear in some other portion thereof expressions or words of the testator, which, when the will is construed as a whole, show a different intention on his part as to the devise under consideration.

The third item of the will contains the following language:

"I also reserve from the land given to my daughter Harriett Abigail DuRant and her heirs the use of the blacksmith shop standing upon said land which I give to my wife Eleanora Rembert during her life and upon her death it shall revert back to my said daughter and her heirs."

Counsel for appellants, disclaiming "any effort to overthrow any principle enunciated in the Barrett case," contend when the will is construed as a whole, the words "her heirs," as used in the third item, indicate an intention on the part of the testator not to use the words "heirs of the body" in the first clause in a strictly technical sense, but as meaning "children."

In support of this contention they cite the case of Gibsonv. Gibson, 113 S.C. 160; 101 S.E., 922. We have examined that case, but the circumstances of the two cases are so entirely different that it cannot be seriously contended that the holdings of the Court in the Gibson case should govern in this case.

It is clear from a reading of the will that the testator intended, by the first and second clauses thereof, to make similar devises to his two daughters, Abigail DuRant and Jane Barrett, and that after the death of each the property devised to her for life should go to the heirs of her body living at the time of her death. The language quoted from the third item of the will is clearly intended as a reservation of the use of a very small part (the blacksmith shop) of the Abigail DuRant devise to his wife during her life, and was not intended to change the disposition made of the property by that clause of the will by which he had already devised it. The words "given to my daughter Harriett Abigail DuRant and her heirs" were used simply for the purpose of identification, and the language "it shall revert back to my daughter and her heirs" was merely intended to direct that it should pass upon the death of his wife to his daughter and her heirs as he had already devised it. But even if there was a conflict between the third and the first items of the will, it can hardly be contended that language relating only to a blacksmith shop should prevail as against language devising the tract of 2,200 acres of land on which the blacksmith shop was located.

We therefore conclude that under the will Harriett Abigail DuRant, the daughter, took a life estate, and that at her death her children then living and such grandchildren then living as were children of a predeceased son or daughter took the land in equal shares.

We note the contention in the respondent's argument that, since it does not appear from the record that any exception was taken to the report of the referee, or that the questions now before this Court were considered by the trial Judge, this Court should dismiss the appeal. This contention is supported by Thomson v. Brown, 56 S.C. 304;33 S.E., 454, and Hubbard v. Camperdown Mills,25 S.C. 496; 2 S.E., 576, and if the matter rested here, the appeal would fail on these grounds.

But it is also true, as contended by appellants, that the record does not show that any notice was given to appellants of the filing of the referee's report 10 days before the hearing of the matter by the trial Judge. If no such notice was given, and the appellants had no opportunity to file exceptions to the report and argue against its confirmation, they had their remedy. However, they have chosen to bring the matter before us in a form in which this Court may render a decision upon the merits, and we have accordingly done so

A full history of the controversy and the facts of the case are set out in the report of the referee, which, with the decree of the Circuit Judge, will be incorporated in the report of the case.

The judgment of this Court is that the judgment of the Circuit Court be affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and CARTER concur.