Whitesides v. Whitesides , 28 S.C. 325 ( 1888 )

The opinion of the court was delivered by

Mr. Justice McIver.

The controversy raised by this appeal arises out of the construction and effect of the following clause in the will of John Brown, deceased: “It is my will and desire that my mother and sister, Tirza, should live together on the farm so long as my mother lives and my sister remains unmarried. It is also my will and desire' that one of Thomas White-sides’ sons — my brother-in-law’s sons — should live on the farm with, and take care of, my mother and sister, and for which care and trouble I will and bequeath to him the aforesaid land or farm at my mother’s death or sister Tirza’s removal. I also will and bequeath, after my just debts are paid, that all my movable property remain on the farm for the support of my mother and sister, and then go to Thomas Whitesides’ son who has lived and taken care of my mother and sister, after my mother’s death, or the removal of my sister Tirza. I also will and bequeath to my sister, Tirza, at her removal, or at my mother’s death, a good horse, saddle, and bridle, to be worth eighty dollars, in addition to her support from the farm.”

Testator’s mother and his sister, Tirza, continued to live on the land in controversy, designated in the will as “the farm,” until their deaths, respectively, the former in 1864 and the latter in 1886. John Whitesides, one of the sons of testator’s brother-in-law, Thomas Whitesides, went on the place to live, and seems to have taken care of the old ladies until 1855, when he died intestate and unmarried. After this two of the other sons of said Thomas Whitesides, first William, until he moved to Arkansas, and then Calvin, until he went into the army, where he died in 1864, went on the place, and seem to have taken care of testator’s mother until her death. After her death Tirza was left there alone, that is, without any white person, except a Mrs. Berry, who, at the request of Tirza, went to live with her, and after the death of Mrs. Berry she lived there alone until her death in 1886, though there was some testimony that Thomas Whitesides, who was the executor of testator’s will, offered to send another son, Joseph, to live with her, which proposition seems to have been declined by Tirza on account of the intemperate habits of Joseph.

The plaintiff, and those of the defendants who are named as appellants, claim this land as heirs at law of John Whitesides, upon the ground'that he had performed the condition, as far as it was possible for him to do, and that when further performance was prevented by his death, his heirs continued to comply with the condition until it was waived by Tirza. This claim is resisted by the other defendants, who, as heirs at law of the testator, insist that the devise was void for uncertainty, or at least the devise, being upon a condition precedent which was never complied with, failed, and the land descended to the heirs of testator as property of which he died intestate.

The Circuit Judge held that a devise to one of the sons of Thomas Whitesides, when he had several sons, was void for uncertainty ; and that as no one of the sons of Thomas Whitesides had performed the condition, which alone would remove the uncertainty, the devise failed for uncertainty. He also held that the condition was precedent, and not having been performed, the estate never vested. He further held that the condition could not be performed for the benefit of John’s estate by his heirs ; but even assuming that it could, he found as matter of fact that thd condition was not fully performed by the heirs, and that its further performance, after the death of testator’s mother, ivas not waived by his sister, Tirza. He therefore rendered judgment: “That the devise of the land described in the pleadings, as attempted in the will of John Brown, deceased, is void for uncertainty and for failure to perform the condition precedent annexed thereto.” From this judgment the plaintiff, together with such of the defendants as are designated as appellants, appeal upon the several grounds set out in the record, in which each one of the rulings of law and findings of fact by the Circuit Judge is contested.

There can be no doubt that a devise to one of the sons of J. S., he having several sons, would be void for uncertainty. 1 Jarm. Wills, *322. So that if this were simply a devise to one of the sons of Thomas Whitesides, with nothing more, there could be no question, as the conceded fact is that Thomas Whitesides had several sons. But it is contended that this uncertainty is removed by the additional words in the devise, which are sufficient to designate which one of the sons the testator intended as the specific object of his bounty. Granting this to be so, and that the testator intended to designate, as the particular object of his bounty, that one of the sons who should comply with the condition prescribed, it would still be necessary, in order to remove the uncertainty, to show such compliance. The fundamental inquiry, then, seems to be as to the fact whether the uncertainty in the object of the devise has been removed by showing a compliance with the prescribed condition. Upon this question of fact the finding of the Circuit Judge is adverse to the appellants, and under our well settled rule will not be interfered with, unless without any testimony to sustain it, or manifest error be shown. We have examined the testimony carefully, and our examination, so far from leading us to the conclusion that the finding is against the manifest weight of the evidence, rather inclines us to adopt the view taken by the Circuit Judge.

This, then, is conclusive of the case, for the only fact which could remove the uncertainty as to the object of the testator's bounty not having been established, the devise must necessarily be regarded as void for uncertainty. It is'quite clear, from the whole tenor of this clause of the will, that the testator’s primary object was to secure thereby a proper provision for the support of his mother and sister. He manifestly had no choice among the several sons of Thomas Whitesides, and, therefore, as the best mode of securing the accomplishment of his primary purpose, his bounty was offered to that one of the sons who should carry out his principal object, and as the evidence fails to show that any one of them has done this, the uncertainty as to the secondary object of bounty still remains.

It will be observed that this is not the case of a devise to some specified person upon condition in which the question whether the condition is precedent or subsequent is oftentimes difficult to determine; but it is a case of a devise to an unascertained or uncertain person, where the uncertainty can only be removed by a compliance with the condition prescribed. So that here the condition is necessarily precedent. No one of the sons of Thomas Whitesides can claim under this devise until he has complied with the prescribed condition, for in that way alone has the testator designated which one of the sons was to take.

Under this view the other questions presented by the grounds of appeal cannot arise, and need not, therefore, be considered.

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