Murchison Nat. Bank v. McInnis ( 1929 )

December 10, 1929. The opinion of the Court was delivered by The plaintiff has contracted to sell to the defendant, John McInnis, and the latter has agreed to buy, a certain lot of land in the town of Clio, Marlboro County. McInnis questions the plaintiff's claim that it is the owner of the fee-simple title to the premises. To test the matter, this suit, with all proper persons made parties, so the parties hereto say, was instituted. The facts are agreed upon by proper stipulation. His Honor, Circuit Judge Dennis, heard the cause, and filed a decree favorable to the plaintiff, from which McInnis and the infant defendants have appealed.

The answers to the legal issues involved depend mainly upon a proper construction of a certain item of the last will and testament of Colonel T.N. Edens, and a codicil to his will, which are as follows:

Item Fourth: "I give, devise and bequeath unto my daughter, Drusilla McGilvary, the Five Forks place or plantation containing two hundred and eighty acres, more or less. I also give, devise and bequeath to my said daughter Drusilla a lot in Clio, fronting on the Rockingham road and adjacent to the one heretofore conveyed to my daughter, Annie Hamer, and of the same size and North of Annie's. I also give, devise, and bequeath to my said daughter, Drusilla, the house and lot in Clio in which Charles Barrington now lives on the north side of the Red Bluff road, containing one acre with fifty yards front."

Codicil: "My daughter, Drusilla P. Edens, having died since the making and publishing my will, I hereby make and publish the following Codicil, viz.: That wherever my daughter Drusilla McGilvary's name appears on each and every line I wish it changed to the name of her daughter, Mary McGilvary, and that she, Mary McGilvary, shall receive and inherit all the property given and bequeathed to her mother, Drusilla, by her father, T.N. Edens, to have and to hold during her lifetime, and should she die without issue, in that event, all the property received by devise from her grandfather, T.N. Edens, shall go back and be the property of said T.N. Edens or his other children."

Essential facts, including certain matters of family history, are agreed to as follows:

The devisee, Mary McGilvary, intermarried with Julian B. Hamer and later with Clifton H. Jackson. By the first union she had two children, and by the second union one child. By warranty deed, Mary conveyed a portion of the land mentioned in item 4 to J.D. Edens, a son of testator, who thereafter by warranty deed conveyed the lot involved in this action to J.C. Covington et al., and by successive conveyances the lot was conveyed to plaintiff, which now claims to own same in fee-simple.

Colonel Edens, the testator, was survived by his five children, Mrs. Annie Hamer, Nellie Edens, Sabra A. Edens, Clara Pearl Edens and Jefferson D. Edens, his granddaughter, the above-mentioned Mary McGilvary, daughter of a predeceased daughter, Drusilla McGilvary, and his widow, Sabra A. Edens.

Mrs. Annie Hamer is living, and appears in this action as Annie B. Barrentine.

Nellie Edens intermarried with Henry Herring, and thereafter died intestate, leaving as her only heirs-at-law her husband, her mother, the above-named sisters and brother, and niece, Mary McGilvary. Henry Herring thereafter intermarried with Mrs. Clara Fountain, and died testate, making his said wife his sole devisee.

Sabra A. Edens, Jr., died intestate on or about March 6, 1910, leaving as her only heirs-at-law her mother, Sabra A. Edens, Sr., her brother, J.D. Edens, her sisters, Annie B. Barrentine and Clara Pearl Godbold, and her niece, Mary McGilvary, now Mary McGilvary Jackson.

Clara Pearl Edens intermarried with L.W. Godbold, and died intestate in May, 1910, leaving as her only heirs-at-law her husband and one child, Duncan Godbold. L.W. Godbold subsequently died intestate, leaving as his only heir-at-law his son, Duncan C. Godbold.

Testator's widow, Sabra A. Edens, died intestate on or about October 4, 1910, leaving as her only heirs-at-law her children, Mrs. Annie B. Barrentine and Jefferson D. Edens, and her grandchildren, Mary McGilvary Jackson (daughter of Drusilla McGilvary) and Duncan C. Godbold (son of Clara Pearl Edens Godbold).

It will thus be seen that Annie B. Barrentine and Jefferson D. Edens are the only children of testator now living; that said Annie and Jefferson and Mary McGilvary Jackson, Duncan C. Godbold, and Clara F. Herring are the only persons who, as heirs-at-law of Nellie Edens, Sabra A. Edens (the daughter), and Sabra A. Edens (widow), and Clara Pearl Edens, or as heirs-at-law or devisees of any of their deceased heirs-at-law, could take any interest under the codicil of testator in the event the death of Mary McGilvary Jackson without issue.

Since Mary McGilvary Jackson conveyed the lot in question to Jefferson D. Edens, and he in turn conveyed same to J.C. Covington et al., they have divested themselves of all interest they have in said lot. In June, 1928, the said Annie B. Barrentine, Duncan C. Godbold, and Clara F. Herring conveyed and quitclaimed the said lot to plaintiff.

What kind of estate did Mary McGilvary (now Jackson) take under the codicil? We think that she took a fee-simple estate, to which was annexed a conditional limitation that renders it liable to be defeated upon her death without issue.Bomar v. Corn, 150 S.C. 111, 147 S.E., 659; Drummondv. Drummond, 146 S.C. 194, 143 S.E., 818; Hudson v.Leathers, 141 S.C. 32, 139 S.E., 196.

That part of the codicil which provides that, in the event of the death of Mary McGilvary without issue, the property devised to her "shall go back, and be the property of said T. N. Edens," the testator, is a nullity, as a reversion is by operation of law, and not by deed or will. Boyce v. Mosely, 102 S.C. 361,86 S.E., 771.

By "other children" testator meant to refer to his children other than the said Drusilla McGilvary. The limitation over to his other children was an executory devise to such of testator's children as could bring themselves within the class of "children" at his death. Such children took a vested, transmissible, executory devise. They, or their heirs or devisees, may deed or release their estate in the lands, or any part thereof, mentioned in item 4 of the will. Hudson v. Leathers,supra. That has been done. Plaintiff is, therefore, the owner of all interests and estates in the lot in question, and has a good, marketable, fee-simple title thereto.

The judgment of the Circuit Court is affirmed.

MR. CHIEF JUSTICE WATTS concurs.

MESSRS JUSTICES COTHRAN, STABLER and CARTER concur in result.