Monk v. Geddes

December 18, 1930. The opinion of the Court was delivered by This action was brought by the plaintiff, Robinson O. Monk, to compel specific performance by the defendant, George W. Johnson, of a contract to purchase a tract of land in Spartanburg County, known as the Compton Farm, devised to him by the will of his father, Robinson B. Monk. The plaintiff's three minor children and the testator's two living grandchildren were made parties defendant, so that their rights in the premises might be protected.

On December 19, 1928, the defendant, Johnson, entered into a contract with the plaintiff to purchase this land, but, when the title to the property was examined, it was reported to him that there was some question as to whether the plaintiff could give him a fee-simple title, and for that reason, he refused to accept a deed to the property. This suit resulted. Johnson testified at the trial that he was ready and able to comply with the contract as soon as the Court should adjudicate that the plaintiff could give him good title.

The will was admitted to probate in 1910, and its pertinent provisions are as follows:

"I give, devise and bequeath unto my beloved son, Robinson O. Monk, my place known as Campton Farm * * * for his own use and here for during his lifetime. In the event of the death of my son Robinson O. Monk, without heirs, then I devise the said tract to my grandchildren" * * * (then follow other gifts to Robinson O. Monk). "In the event of the death of my son Robinson O. Monk without heirs, then it is my will that all the property to go to my grandchildren."

The Master, to whom the case was referred, concluded that under the terms of the will, Robinson O. Monk took a fee-conditional estate in land, and that children having been born to him, the fee became absolute so as to enable him to alienate or mortgage the property, and recommend that Johnson be required to comply with the contract. Exceptions were taken to this report, and the matter was heard by his Honor, Judge Sease, who made a decree confirming the report of the Master and directing specific performance by Johnson.

The appeal from this decree presents the issue as to the estate taken by Robinson O. Monk.

This Court has repeatedly said that in the construction of a will the testator's intention, as gathered from the will, must govern, unless it is in conflict with some rule of law.

The will here expressly gives to Robinson O. Monk only a life estate in the land; and, if he holds any greater estate, it must arise by implication. The general rule is that no estate can arise by implication unless from necessity, and that such necessity must appear on the face of the will. Shaw v. Erwin, 41 S.C. 209,19 S.E., 499. And there is another rule that, where an estate is once given by words of clear and ascertained legal significance, it will be neither enlarged nor cut down by superadded words in the same or a subsequent clause of the will, unless they raise an irresistible inference that such was the intention of the testator. Lawrence v. Burnett, 109 S.C. 416,96 S.E., 144.

In the case at bar, we think the word "heirs" cannot mean heirs general, but must be construed to mean either "heirs of the body" or "children," for the reason that, aside from the improbability that Robinson O. Monk would die without heirs general, the contingency upon which the land was to pass to the grandchildren and such actual passing of the land — if "heirs" means heirs general — are inconsistent and could not both occur, as Robinson O. Monk could not die without heirs general so long as there were any grandchildren of the testator, his father, to take under the will — which inconsistency would not exist if the word "heirs" be taken to mean either "heirs of the body" or "children."

But there is no specific devise of an interest in the land to Robinson O. Monk's "heirs," whether taken to mean either "heirs of the body" or "children," and, if they take any estate under the will, it also must arise by implication. The respondent's argument seems to be that "heirs" means "heirs of the body"; that an estate in remainder arose by implication in the heirs of the body of Robinson O. Monk; and that by application of the rule in Shelley's case, Robinson O. Monk took a fee-conditional, and hence, the condition having been fulfilled by the birth of children, has the power to alienate the land in fee-simple.

Bearing in mind the rules of construction announced, we do not think that the language used in the will is sufficient to create an estate in the "heirs of the body" of Robinson O. Monk, and hence he could not take a fee-conditional. Nor do we think that any estate would arise by implication in the "children" of Robinson O. Monk.Barber v. Crawford, 85 S.C. 54, 67 S.E., 7; Id., 86 S.C. 51,67 S.E., 1135; Shaw v. Erwin, supra; Adams v. Chaplin, 1 Hill Eq., 265; Edwards v. Barksdale, 2 Hill Eq., 184;Edwards v. Edwards, 2 Strob. Eq., 101; Wilson v. Poston,119 S.C. 67, 111 S.E., 873; Lawrence v. Burnett, supra.

In our view of the matter, Robinson O. Monk took a life estate in the land with remainder in the grandchildren if he should die without heirs of the body, and if he should die with heirs of the body the land would become intestate property of the testator. Lawrence v. Burnett,supra.

The order appealed from is reversed.

MESSRS. JUSTICES COTHRAN, BLEASE and CARTER concur.