Boatwright v. Faust

15 S.C.L. 439

• Court: Court of Appeals of South Carolina
• Decided: January 15, 1828
• Status: Published

Opinion

Curia per

Nott, J.

The motion in this case must be granted. There is no principle of law better.settled than that previous tp our late act of Assembly upon the subject, a devise of lands containing no words of perpetuity carried only a life estate. No member of this Comí ever entertained a different opinion. Technical words are not necessary. Therefore, where an intention tb pass a fee’ is manifest, that" inténtion will be carried into effect by whatever words it may be expressed. In the case of Hall and, Goodwyn, the Court differed about the construction of the will, hut not about the rule-of law* In the eases quoted from I)e Saussure’s reports, the Court of Equity appears to have gone great lengths in behalf of devisees, but the Judges always profess to be governed by the intention of the testator. There are no words in this will from which an intention to give a fee can be inferred.

- By the act of 1824, it is declared that every gift of land by devise shall be construed a gift in fee simple.— .'But that act cannot effect the will now in question, as it was passed since the execution of the will, and even since the death of the testator. It was not the object of the Legislature to reconcile the conflicting decisions on the question but to change the law. The act therefore can' only have a prospective operation. The decision must be reversed.

All the Court concurred. Judgment reversed.