Wallace v. Taylor

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This action involves the construction of the following deed, executed by Whittington Hamilton, on the 27th of March, 1900:

“Know all men by these presents, that I, Whittington Hamilton in the state aforesaid and Marion County, in consideration of the sum of $100.00 to me in hand paid at and before the sealing of these presents, by W. W. and W. R. Hamilton, also for the natural love and affection which I now bear towards the said W. W. and W. R. Hamilton, in the state aforesaid, the receipt whereof is hereby acknowledged, have granted, bargained, sold and released, and by these presents do give, grant, bargain, sell and release unto the said W. W. and W. R. Hamilton, and to their children after my death but not before,

“All that certain piece, parcel or tract of land situate in Manning township in Marion County and state aforesaid; bounded on the north by lands owned or formerly owned by J. W. Bridgers and lands of S. J. Proctor; east by the lands of the undersigned which he has heretofore deeded to W. W. and W. R. Hamilton; south by lands of J. W. Dillon & Son; west by lands of C. Wilburn; and containing 180 acres, more or less, and to be divided between the said W. W. and W. R. Hamilton, «qually, each one-half. The said W. W. Hamilton to have the upper or western half and W. R. Hamilton to have the, lower or eastern half.

“Together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonging or in any wise incident or appertaining.

“To have and to hold, all and singular, the said premises before mentioned unto' the said W. W. Hamilton and W. R. Plamilton, their children, their heirs and assigns forever, after my death.

“And I do hereby bind myself, my heirs, executors, and administrators to warrant and forever defend all and singular the said premises unto the. said W. W. and W. R. Hamilton, and to their children, and their heirs and assigns against me and my heirs and assigns and all other persons lawfully claiming or to claim the same or any part thereof.”

The Decree of his Honor, the, Circuit Judge (omitting the deed herein reproduced) will be incorporated in the report of the case.

The sole exception is as follows:

“His Honor erred in holding that the deed of W. W. Hamilton, Sr., conveyed to W. R. Hamilton an estate in fee conditional, when he should have held, that he conveyed a fee-simple estate, subject to open and let in his children.”

The following statement appears in the record:

“When the deed was executed and delivered, neither W. W. Hamilton nor W. R. Hamilton had any children. W. R. Hamilton died in 1903, intestate, without having had any children, and left surviving him his widow. W. W. Hamilton died intestate in 1918, leaving a widow and several children. Whittington Hamilton, the grantor, died in 1919, intestate, leaving as his heirs at law children and grandchildren as set out in the complaint. It appears that one daughter of Whittington Hamilton, Sr., predeceased her father, leaving a husband and children.”

In the granting clause of the deed, it is stated that it was executed in consideration of $100, paid by W. W. Hamilton and W. R. Hamilton to the grantor, also for the natural love and affection which the grantor bore towards W. W. and W. R. Hamilton; the children not being mentioned.

In that clause the grantees named are “W. W. and W. R. Hamilton and to their children after my death but not before.” The words “after my death and not before” were not intended to be applicable to W. W. and W. R. Hamilton, but solely to their children, as will be seen by reference to the concluding words in that clause as follows:

“To be divided between the said W. W. and W. R. Hamilton equally, each one-half. The, said W. W. Hamilton to have the upper or western half and W. R. Hamilton to have the lower or eastern half.”

His Honor, the Circuit Judge, finds as a fact that this division took place in 1915, which was' prior to the death of the grantor, who did not die, until 1919.

For the same reason the words “after my death,” in the habendum, were not intended to be applicable to’ W. W. and W. R. Hamilton, but solely to the children.

It was not the intention of the grantor that the children of W. W. Hamilton should take under the deed any part of the land assigned to W. R. Hamilton, nor that the children of W. R. Hamilton should take any part of the land assigned to W. W. Hamilton.

The authorities cited in the Decree of his Honor, the presiding Judge, to which may be added the case of Strother v. Folk, 123 S. C., 127; 115 S. E., 605, show that as W. R. Hamilton did not have a child in esse when the deed was executed, there was nothing to prevent W. R. Hamilton from taking the entire fee in the one-half assigned to him.

Reversed.

Messrs. Justices Watts and Fraser concur. Messrs. Justices Cothran and Marion concur in result.