Dickson v. Dickson , 1885 S.C. LEXIS 96 ( 1885 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

This case involves the rights of certain parties (named in the pleadings) under the will of Sarah O’Hear, deceased, late of the city of Charleston. The will is set out in full in the “Case,” but as the questions before the court arise more especially out of one clause thereof, it will only be necessary here to refer to that clause. The testatrix left surviving two daughters and three sons, and in the clause of the will referred to supra, she bequeathed and devised as follows: “Item. I give unto my son, Joseph F. O’Hear, my servant boy Peter, absolutely. Item. To my son, John S. O’Hear, my boy Wells, absolutely. Item. To my son, James, my boy Charles, absolutely. Item. To my two daughters, Louisa and Amelia F. O’Hear, I leave all the restand residue of my estate, both real and personal, for their own use and benefit during the term of their natural lives, and upon the death of either, leaving issue, such issue shall take their parent’s share at marriage, or on arriving at age, absolutely and forever. But in default of such issue, then the property so given to go to my three sons, share and share alike, or in case of the death of any of them at that time, to and among their then surviving children; such children, collectively, taking their parent’s share. It is my meaning and intention, however, that the interest or income only, arising from the most judicious investment of the said property by my trustees, be paid to my daughters for their maintenance and support, they being allowed to select such servants as they please as attendants about them, and to choose their residence, which shall be purchased or hired, as may be deemed most advisable by a majority of my executors.”

Amelia F. O’Hear, one of the life-tenants, died in 1882, leaving no issue. Her sister, Louisa, the. other life-.tenant, survived her, and has issue living; she is the plaintiff in this action. The three brothers of Amelia predeceased her.' Joseph died in 185 , unmarried, and leaving no issue. He left a will, dated August, 1852, by which he gave all of his property to his brothers and sisters, in equal division. His brothers were appointed his executors, both of whom have’since died, and the defendant, Mrs. S. Isabel O’Hear, has administered de bonis non. . James O’Hear died in 1864, leaving children, some of whom have since died, leaving children. John S. O’Hear died in 1875, leaving children.

Upon this state of facts the questions presented for consideration are these: 1st. Joseph, one of the brothers, having died before the life-tenant, Amelia, leaving no issue, is his estate excluded from sharing in the distribution of that portion of the estate of his mother enjoyed by Amelia for life, and shall said portion be divided between the children of James and John, one-half to each family of children? Or, did Joseph take such an-interest in the estate of the testatrix as under the facts will entitle his representatives or devisees to receive the same?

The Cii’cuit Judge, his honor, Judge Fraser, overruling the conclusions of the master, held that the representatives of Joseph, or his heirs and devisees, according as the property was real or persona], were entitled to one-third of the estate in contest, and. that the children of James and John, who survived Amelia, were entitled among them, each set, to one-third, no part going to the grandchildren. The appeal questions this holding, the appellants contending that the remainder after the death of Amelia should have been divided equally between the children of James and John, surviving at that time, that is, one-half to the children of James, and one-half to the children of Johh, Joseph having died unmarried and without issue, before the death of Amelia; and, therefore, in the opinion of the appellants, not entitled to any portion of said estate.

It is conceded on both sides that the interest bequeathed and devised to the sons of the testatrix upon the termination of the life estate given to her daughters, was a contingent interest as contradistinguished from a vested one, the contingency being the death of the life-tenants, one or both, without issue surviving. That this is a correct construction, we think is fully sustained by our recent cases of McElwee v. Wheeler, 10 S. C., 392; Boykin v. Boykin, 21 S. C., 513.

The appellant, however, contends that the interest to the sons was given them as a class, and that only such of the sons as were in existence at the time of the happening of the' contingency, could take the share of such as ma.y have died in the life-time of the tenant for life, being subject to the other provisions of the will, which directed that said share should go to their surviving children; and that, inasmuch as no one of the class was in existence at the death of Amelia, the life-tenant, all of her brothers (the sons) having predeceased her, the contingency never happened upon which either of these sons was to take, and that under these circumstances such of the children of the deceased sons as survived become entitled under that provision of the will, which declared that in case of the death of either of the sons before the death of the life-tenant, leaving children, they should take their parent’s share. There is a class of cases in which, when property is given by will to be distributed among a class of persons at some future time, or on some future contingency, all are let in who come into existence before the time or the happening of the event; provided they be in existence at the happening of said event, and no one but such as may be in existence at that time can take. This case, however, in our opinion, does not fall wdthin that class.

As was said by the Circuit Judge, quoting from 1 Jarm. Wills, 534: “A gift to persons as a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time.” Here the gift was not to a body of persons uncertain in number, and to be ascertained at a future time; on the contrary, it was to the three sons of the testator alive and in being at the time of the execution of the will, and the direction was that the property should go to these three sons, share and share alike, upon the death of the life-tenant, leaving no issue. Certainly it could'not be contended that if the testatrix had named the sons, each to be entitled to a share upon the contingency specified, that in such case the doctrine as to the gifts to a class would apply, excluding such as were not in existence at the happening of the contingency, and giving the whole estate to such .only as ivere then in being; and yet the language used seems to us to exclude the idea of a class as fully as if the sqns had been named individually. The testatrix had but the three sons, and among these three she directed the estate to be divided upon the happening of the contingency mentioned, share and share alike; calling them by name could not have emphasized the idea that they were to take individually, and not as a class, more strongly.

Our conclusion is, that each of the sons was a contingent remainderman, to the extent of one-third of the property given to the life-tenants. See cases of McMeekin, admr., v. Brummet, 2 Hill Ch., 638, and Pritchett et al. v. Cannon et al., 10 Rich. Eq., 394.

The important question, however, what became of the interest of Joseph on his death before the life-tenant leaving no children? still remains. Had he left children, as did his brothers upon their death, the provision in the will giving the shares of the deceased sons to their children would have met the case; but, as we have said, he died leaving no issue. It appeal’s somewhat anomalous that a contingent remainder which never, in fact, ' vests in the remainderman during his life, should yet be transmissible to his representatives. But that there are such contin.gent remainders is well settled. There are several kinds of contingent remainders classified by the character of the contingency upon which they are based. Mr. Fearne divides them into four classes. It is not necessary, however, to discuss all of these. It is sufficient for our present purpose to say that where the existence of the remainderman himself at the time of the event upon which the remainder is to take effect does not constitute the contingency, then the remainder is transmissible. A testator may make it one of the conditions of the limitation that the remainderman shall survive the first taker; but where he fails to do this and places the remainder upon some other event or contingency, wholly disconnected from the survivorship of the remainderman, the fact of his non-survivorship will not defeat the remainder, for the obvious reason that the testator has not so declared and directed. McMeekin, admr., v. Brummet, and Pritchett et al. v. Cannon et al., supra; Fearne Rem., 559, 560.

It is true that the will here defeats the remainder to such of the sons as may die in the life-time of the tenant for life, leaving children, by substituting in such an event the children of such son in the place of the parent. But there is nothing in the will which indicates a purpose that the remainder shall be defeated simply by the death of the sons before the death of the life-tenant. Nor is the remainder either expressly or impliedly made dependent upon the existence of the sons at the death of the life-tenant. On the contrary, it is made dependent wholly upon the event of the life-tenant dying without issue, which event having happened as to Amelia, the remainder takes effect, the share of Joseph being transmissible, and the shares of the other two sons going to their children as by the will directed.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.