Mitchell v. Mitchell ( 1924 )

I concur in the opinion of Mr. Justice Watts upon the grounds which I shall present.

The object of this action is to confirm an agreement entered into by Margaret V. Mitchell and other devisees under the will of F.M. Trimmer, the agreement providing for a partition of the real estate of which he died seized and possessed. The question involved is whether or not the will created contingent remainders in the unborn great-grandchildren of the testator. The matter is quite complicated, and is made more confusing by the similarity in the names of certain beneficiaries under the will.

F.M. Trimmer was never married, but was the father of an illegitimate child whose name was Margaret V. Trimmer. She was taken into his family, which consisted at the time the will was executed of his mother, Margaret H., a sister Margaret L., and certain nephews and nieces of two deceased brothers, William and Theodore. At that time the daughter was about 17 years of age. She afterwards married one Mitchell, by whom she had one daughter, whose name is Margaret F. She has lately married. There appear in this matter the mother, Margaret H., the sister Margaret L., the daughter Margaret V., and her daughter Margaret F. To avoid confusion, they will be referred to as the mother, the sister, the daughter, and the granddaughter.

The questions involved turn upon the construction of item I of the will of F.M. Trimmier, which will be reported. The real estate consists of nearly 2,000 acres of farm land, and quite a large amount of city property in Spartanburg. The testator died in 1888, and at some time recently (the date does not appear in the record) an agreement was executed by the daughter, the granddaughter, and the contingent remaindermen, by which certain of the real estate was apportioned to the contingent remaindermen and the balance of it to the daughter and granddaughter, in fee-simple, discharged of all conditions imposed by the will; each branch of the family, the daughter and granddaughter on the one side, and the nephews and nieces on the other, relinquishing their claims reciprocally to the real estate apportioned to the other.

It is manifest that the completeness of this arrangement, its effectiveness in passing title to the several apportionments, depends upon the question whether or not the will created contingent remaindermen in the issue of the granddaughter. The agreement is perfectly valid, of course, between the parties, so far as their individual interests, present or prospective, are concerned, but it is apparent that if contingent remainders are created in favor of the issue of the granddaughter, in the event that she should predecease the daughter, leaving issue, a deed from the granddaughter at this time would not convey a perfect title, and the same infirmity would exist in the title of the nephews and nieces to the property apportioned to them by the agreement.

The property is devised to the mother for life; at her death to the sister for life; at her death to the daughter for life; at her death to such issue of the daughter as may be living at the time of her death, to said issue and their heirs forever; with remainder over on default of issue to the nephews and nieces. Assume a condition that is entirely possible. The granddaughter dies before the daughter, her mother, leaving children. Upon the death of the daughter, the granddaughter having predeceased her, leaving children, would the children so surviving be entitled to the property as the issue of the daughter? This depends upon whether the word "issue" is to be construed in its technical sense, or as "children," so that the limitation would read: To the mother for life, at her death to the sister for life, at her death to the daughter for life, and at her death to such of her children as may be living at the time of her death in fee.

It is much safer, and tends more to the stability of the law, that in the construction of written instruments the words used should be given their accepted legal interpretation, rather than to wander into the domain of conjecture as to the maker's intentions, unless that interpretation is controlled by the clearest expression of the intention, contained in the instrument. See the very pertinent quotation from the case of Carr v. Porter, 1 McCord Eq., 71, in the concurring opinion of Mr. Justice Fraser in Strother v. Folk,123 S.C. 127; 115 S.E., 605.

I consider it as settled, in this State, that when a testator uses technical terms throughout a will, the Court has not the power to and will not undertake to substitute other words for them, or to disregard their legal effect, or to adopt their popular instead of their legal meaning, unless impelled to do so by expressions contained in the limiting clause, or elsewhere within the four corners of the will. Smith v.Hilliard, 3 Strob. Eq., 211.

It is equally true that if from superaded expressions, or from the context, or from other parts of the will, it is manifest that the testator used the term "issue" as synonymous with "children," or intended to describe a class of persons totake at a particular time, "issue" will be construed as "children."McLure v. Young, 3 Rich. Eq., 559.

I think that it is clear, even if it cannot be said that the testator intended to use the word "issue" in the sense of "children," he certainly intended what is the legal effect of the limitation, whether he intended it or not, to describe a class of persons to take at a particular time, which constituted them purchasers. The granddaughter, therefore, took a contingent remainder in fee; a deed from the daughter of her life estate, and of the granddaughter of her remainder in fee, carries a good title, under the agreement, to the other contingent remaindermen, the nephews, and nieces, and a deed from the latter to the former has the same effect. The authorities cited by the writer in his dissenting opinion in the case of Strother v. Folk, supra, are conclusive upon this question.

I think, therefore, that the decree of his Honor, Judge Mauldin, should be affirmed.

MESSRS. JUSTICES WATTS and MARION concur.