SMITH, District Judge.
A bill in equity was filed by some of the appellees as complainants in the court below against the appellant E. M. Blythe and others as defendants for the partition and sale of the lands described in the complaint and the division of the proceeds thereof among the parties entitled according to their interests. The defendant E. M. Blythe filed an answer, setting up a title in himself in severalty to the larger part of the property sought to be partitioned, and by stipulation of counsel for all parties below the cause was to be heard upon the pleadings; the allegations of fact in the complaint and answers being taken as true.
The cause was heard in the court below upon the pleadings under this stipulation,, and a decree rendered excluding the defendant E. M. Blythe from any title in severalty in fee, but allowing him a one thirty-sixth undivided interest in the part (23 acres) claimed by him, and directing the property to be sold for partition. Erom this decree the defendant E. M. Blythe has taken this appeal, and, his codefendants failing and refusing to join with him in the appeal, an order of severance has been made, and the defendant E. M. Blythe is the sole appellant before the court.
The facts are as follows:
On the 30th of March, 1887, one O. N. Good, for natural love and affection, executed a deed of conveyance whereby he granted and conveyed to his brother, Valentine G. Good, a tract of land described in the bill of complaint below, and in the deed, containing 34% acres, more or less, reserving one-fourth of the annual crops therefrom to the comfort and support of his father, Henderson Good, during his natural life, with the following habendum:
“To have and to hold, all and singular, the said premises before mentioned, subject to the reservation and charges hereinbefore set forth, unto the said Valentine G. Good, for and during his natural life, and after his death to the heirs of his body, their heirs and assigns forever.”
On the 26th of September, 1892, the said Valentine G. Good executed to his wife, Mrs. S. C. Good, a deed of conveyance, purporting to be a deed of conveyance in fee simple with warranty, conveying the entire 34% acres, more or less. Later, viz. on the 19th of September, 1894, the- said Mrs. S. C. Good executed and delivered to Mrs. Nannie J. Good a deed of conveyance, purporting to be a deed of conveyance in fee simple with warranty, of a part of the land, and also later, on April 20, 1899, Mrs. S. C. Good executed a deed of conveyance, purporting to be a deed of conveyance in fee simple with warranty, of the remainder of the land, containing about 23 acres, to one C. F. Dill, who later, on May 11, 1907, conveyed in fee simple the 23 acres to the appellant, E. M- Blythe.
The whole question in the case turns upon what estate the defendant Valentine G.. Good took under the deed of gift from his brother to himself. If, under the deed, Valentine G. Good took a life estate, with remainders to the heirs of his body as purchasers, in the sense of chil[549]*549dren, then the decree should be affirmed. If, however, under that deed he took a fee conditional—that is to say, a fee which became absolute upon the birth of issue, he then obtaining a fee simple absolute— his deed to his wife, Mrs. S. C. Good, conveyed a good estate in fee simple, and the appellant, E. M. Blythe, who derives his title thereunder, is entitled to the land thereby conveyed to him, and the decree should be reversed, so far as E. M. Blythe is concerned.
In considering the deed, it is to be noted, first, that the general atmosphere of the deed is that of a provision by one brother for his father and his brother and his brother’s children. The deed is, on the face of it, for natural love and affection, and is a donation. While giving by the habendum a life estate in express terms to his brother, Valentine G. Good, the deed, taken as a whole, reserves a life estate, certainly as to one-fourth of the annual crops or the income therefrom, to the support of the grantor’s father, Henderson Good, for his natural life. This charge or reservation in favor of his father, Henderson Good, would continue until the death of Henderson Good, whether he survived his son, Valentine G. Good, or not. Subject to this reservation and charge, the estate is conveyed to Valentine G. Good, for and during his natural life, and after his death to the heirs of his body, their heirs and assigns, forever.
Did Valentine G. Good take an estate in fee conditional under the language of this deed? If he did, it was by virtue of the rule in Shelly’s Case, as applied, construed, and enforced in the state of South Carolina, and the inference must be, from the language of this deed, that it gave to Valentine G. Good an estate in freehold for life, with a limitation by way of remainder to his heirs generally or the heirs of his body. In that case, Valentine G. Good would be in as of an estate in fee conditional, and upon the birth of; issue, under the law of South Carolina, if he held the land under a fee conditional, the estate in him would have become absolute.
[1] The rule in Shelley’s Case is adjudged in the state of South Carolina to be a wise and salutary rule, one to be enforced in all cases in which it is applicable. The rule is generally supposed to have had its origin in the application of a policy of law; the policy of the law being to favor descents as much as possible, from which arose the aversion that the common law is said to have had to the inheritance being in abeyance. The rule was also supposed to have been adopted, and has been enforced on the theory of facilitating the vesting of the inheritance without uncertainty, and thereby facilitating the alienation of land, and preventing its being, as it were, locked up by indefinite limitations, depending upon the uncertain birth or failure of issue.
Inasmuch, however, as the rule gave to technical words a technical and fixed construction, conflicts arose when it would appear, upon the face of the deed or will, that the technical wording leading to a fixed construction was really an arbitrary or artificial construction, as frequently to interfere with what appeared to be the expressed intention of the grantor or testator. From thence followed a leaning of courts away from the rule, upon the supposition that it too frequently interfered with the giving effect to the real intention of the grantor or [550]*550testator; and from the supposition that this was too often the effect of the artificial construction given to instruments under the rule in Shelley’s Case, that rule has fallen, as it were, into disrepute, as being one that operated to defeat the intention of a testator.
The consequence has been that in some states of the American Union the rule has been abolished, and generally in others the trend of the adjudicated cases has been to lay hold of anything in the language used which would allow the court to abstain from the enforcement of the rule, and give effect to what appeared to the court to be the real intent of the grantor or testator upon the face of the deed or will.
[2] It is not to be denied that the large number of cases in the courts of South Carolina, more or less dealing with the application of the rule in Shelley’s Case, appear to be hard to reconcile. The general effect of those decisions, however, is that the courts in South Carolina will not give effect to the rule in Shelley’s Case, unless it is strictly a case in which the language is directly within the purview of the rule.
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SMITH, District Judge.
A bill in equity was filed by some of the appellees as complainants in the court below against the appellant E. M. Blythe and others as defendants for the partition and sale of the lands described in the complaint and the division of the proceeds thereof among the parties entitled according to their interests. The defendant E. M. Blythe filed an answer, setting up a title in himself in severalty to the larger part of the property sought to be partitioned, and by stipulation of counsel for all parties below the cause was to be heard upon the pleadings; the allegations of fact in the complaint and answers being taken as true.
The cause was heard in the court below upon the pleadings under this stipulation,, and a decree rendered excluding the defendant E. M. Blythe from any title in severalty in fee, but allowing him a one thirty-sixth undivided interest in the part (23 acres) claimed by him, and directing the property to be sold for partition. Erom this decree the defendant E. M. Blythe has taken this appeal, and, his codefendants failing and refusing to join with him in the appeal, an order of severance has been made, and the defendant E. M. Blythe is the sole appellant before the court.
The facts are as follows:
On the 30th of March, 1887, one O. N. Good, for natural love and affection, executed a deed of conveyance whereby he granted and conveyed to his brother, Valentine G. Good, a tract of land described in the bill of complaint below, and in the deed, containing 34% acres, more or less, reserving one-fourth of the annual crops therefrom to the comfort and support of his father, Henderson Good, during his natural life, with the following habendum:
“To have and to hold, all and singular, the said premises before mentioned, subject to the reservation and charges hereinbefore set forth, unto the said Valentine G. Good, for and during his natural life, and after his death to the heirs of his body, their heirs and assigns forever.”
On the 26th of September, 1892, the said Valentine G. Good executed to his wife, Mrs. S. C. Good, a deed of conveyance, purporting to be a deed of conveyance in fee simple with warranty, conveying the entire 34% acres, more or less. Later, viz. on the 19th of September, 1894, the- said Mrs. S. C. Good executed and delivered to Mrs. Nannie J. Good a deed of conveyance, purporting to be a deed of conveyance in fee simple with warranty, of a part of the land, and also later, on April 20, 1899, Mrs. S. C. Good executed a deed of conveyance, purporting to be a deed of conveyance in fee simple with warranty, of the remainder of the land, containing about 23 acres, to one C. F. Dill, who later, on May 11, 1907, conveyed in fee simple the 23 acres to the appellant, E. M- Blythe.
The whole question in the case turns upon what estate the defendant Valentine G.. Good took under the deed of gift from his brother to himself. If, under the deed, Valentine G. Good took a life estate, with remainders to the heirs of his body as purchasers, in the sense of chil[549]*549dren, then the decree should be affirmed. If, however, under that deed he took a fee conditional—that is to say, a fee which became absolute upon the birth of issue, he then obtaining a fee simple absolute— his deed to his wife, Mrs. S. C. Good, conveyed a good estate in fee simple, and the appellant, E. M. Blythe, who derives his title thereunder, is entitled to the land thereby conveyed to him, and the decree should be reversed, so far as E. M. Blythe is concerned.
In considering the deed, it is to be noted, first, that the general atmosphere of the deed is that of a provision by one brother for his father and his brother and his brother’s children. The deed is, on the face of it, for natural love and affection, and is a donation. While giving by the habendum a life estate in express terms to his brother, Valentine G. Good, the deed, taken as a whole, reserves a life estate, certainly as to one-fourth of the annual crops or the income therefrom, to the support of the grantor’s father, Henderson Good, for his natural life. This charge or reservation in favor of his father, Henderson Good, would continue until the death of Henderson Good, whether he survived his son, Valentine G. Good, or not. Subject to this reservation and charge, the estate is conveyed to Valentine G. Good, for and during his natural life, and after his death to the heirs of his body, their heirs and assigns, forever.
Did Valentine G. Good take an estate in fee conditional under the language of this deed? If he did, it was by virtue of the rule in Shelly’s Case, as applied, construed, and enforced in the state of South Carolina, and the inference must be, from the language of this deed, that it gave to Valentine G. Good an estate in freehold for life, with a limitation by way of remainder to his heirs generally or the heirs of his body. In that case, Valentine G. Good would be in as of an estate in fee conditional, and upon the birth of; issue, under the law of South Carolina, if he held the land under a fee conditional, the estate in him would have become absolute.
[1] The rule in Shelley’s Case is adjudged in the state of South Carolina to be a wise and salutary rule, one to be enforced in all cases in which it is applicable. The rule is generally supposed to have had its origin in the application of a policy of law; the policy of the law being to favor descents as much as possible, from which arose the aversion that the common law is said to have had to the inheritance being in abeyance. The rule was also supposed to have been adopted, and has been enforced on the theory of facilitating the vesting of the inheritance without uncertainty, and thereby facilitating the alienation of land, and preventing its being, as it were, locked up by indefinite limitations, depending upon the uncertain birth or failure of issue.
Inasmuch, however, as the rule gave to technical words a technical and fixed construction, conflicts arose when it would appear, upon the face of the deed or will, that the technical wording leading to a fixed construction was really an arbitrary or artificial construction, as frequently to interfere with what appeared to be the expressed intention of the grantor or testator. From thence followed a leaning of courts away from the rule, upon the supposition that it too frequently interfered with the giving effect to the real intention of the grantor or [550]*550testator; and from the supposition that this was too often the effect of the artificial construction given to instruments under the rule in Shelley’s Case, that rule has fallen, as it were, into disrepute, as being one that operated to defeat the intention of a testator.
The consequence has been that in some states of the American Union the rule has been abolished, and generally in others the trend of the adjudicated cases has been to lay hold of anything in the language used which would allow the court to abstain from the enforcement of the rule, and give effect to what appeared to the court to be the real intent of the grantor or testator upon the face of the deed or will.
[2] It is not to be denied that the large number of cases in the courts of South Carolina, more or less dealing with the application of the rule in Shelley’s Case, appear to be hard to reconcile. The general effect of those decisions, however, is that the courts in South Carolina will not give effect to the rule in Shelley’s Case, unless it is strictly a case in which the language is directly within the purview of the rule. Wherever, according to the decisions in South Carolina, it appears on the face of the instrument that the words “heirs,” or “heirs of the body,” or “issue,” or such words of inheritance, are limited or qualified by additional words varying or contradicting the construction necessarily placed upon those words by the application of the rule in Shelley’s Case, then the rule will not be applied, and the court will lay hold of the varied language of the instrument, to give effect to what it finds on the face of the instrument to have been the true intent of the grantor or testator.
If a grant were to A. for life, and after his death to his heirs, or the heirs of his body, under the language of the decisions in the courts of South Carolina, the rule in Shelley’s Case would apply. If, however, there is any variation from this language, the court has held itself open to avail itself of the variation to give effect to what upon the face of the deed or will appears to be the intent of the testator.
[3] It is to be observed, also, in the instant case, that, if the effect upon the face of the instrument of the reservation in favor of the father of the grantor for life of one-fourth of the products of the property was to vest in him an undivided interest in the same for life as a freehold undivided interest, the rule would not apply. In the case of Shaw v. Robinson, 42 S. C. 342, 20 S. E. 161, it is expressly decided by the Supreme Court of South Carolina that, for the rule to apply, subsequent limitations to the heirs must be to the heirs of the ancestor who takes the particular estate, and that where the prior estate 'is limited to more than one, with remainder to the heirs of the body of one, the limitation over would be a remainder, and the rule would not operate, and the heirs of that one would take as purchasers.
The reason of this is apparent: If the grant be to A. and B. for their joint and several lives, and after the death of the survivor to the heirs of the body of A., then, in case A. had issue, what became of the estate of B? So in the instant case: If, on the birth of issue, the estate to Valentine G. Good became one absolute in fee simple, then the provision for Henderson Good would have been nullified. It would [551]*551not appear to be an answer to this to say that on the birth of issue to Valentine G. Good he took an estate in fee simple, subject to a charge in the nature of a lien in favor of Henderson Good, for his life, for the object of the rule in Shelley’s Case was to avoid just such postponements of the absolute vesting and consequent deferring of the facility for alienation.
[4] Assuming, however, for the sake of the argument, that the effect of this reservation to Henderson Good was not to make a prior life estate to two persons, to wit, Valentine G. Good and Henderson Good, but to make it a life estate for Valentine G. Good alone, subject only to the charge to Henderson Good, it would still appear upon the face of the deed that! the intention of the grantor was not that the limitation over should be one which inured to the benefit of his brother, Valentine G. Good. It appears upon the face of the deed, that the conveyance was a donation made by O. N. Good for the benefit of his brother and of his father and of his brother’s children, and iheir heirs and assigns; and to give the deed, therefore, the effect of a deed in fee simple vesting in Valentine G. Good upon the birth of issue, would be to defeat the provision from the annual crops for the support of his father, Henderson Good, as Well as any provision intended for the nephews or nieces of the grantor who might be children of his brother.
To the ordinary mind the very express declaration—as in the instant case—that the grant was for life, would in itself convey the inference that that was all that it was intended to bestow, and nothing but the artificial construction given by the rule of law to that grant, when followed by words of limitation to heirs or heirs of the body, would induce an inference that a larger estate than one for life was given. In the opinion of the court, under the language of the deed in the present case, where the grant is to A. for life, with a reservation to B. for B.’s life of one-fourth of the product of the estate, and a limitation after the death of A. to the heirs of his body, their heirs and assigns, forever, the rule in Shelley’s Case is not, under the laws of South Carolina, applicable, but that the heirs of the body of A. take a remainder in fee as purchasers.
There have been a number of cases in the state courts of- South Carolina upon the application of the rule in Shelley’s Case. These are stated in full in the printed arguments of counsel, and were well commented on at the time of the hearing in this court, and have been carefully compared and considered. To go over them all at any length in this opinion would not be profitable, in view of the fully reasoned opinion of the learned judge who delivered the opinion and decree below. This court concurs with the learned judge below that the instant case is controlled by the principles laid down in McIntyre v. McIntyre, 16 S. C. 290, recognized and reaffirmed in Williams v. Gause, 83 S. C. 265, 65 S. E. 241, and Adams v. Verner, 102 S. C. 17, 86 S. E. 211.
The decree below is accordingly affirmed.
Affirmed.