Dubose v. Flemming

76 S.E. 277, 93 S.C. 182, 1912 S.C. LEXIS 314

Opinion

The opinion of the Court was delivered by

Mr. Justice Hydrick.

This action was brought to have the Court construe the will of IT. G. Dennis.

The Circuit Court held that the devisees therein' mentioned took fees conditional with cross remainders.

The record shows that testator left a sister and nephew and nieces, the children of a predeceased brother, besides the devisees, who’ are sons of a predeceased sister.

Construed in the light of these circumstances, the word “heirs” was properly held to have been used in the will in the sense of children, or heirs of the body, and that each of the devisees took a fee — conditional, with remainder to the other, in the event of his death without issue. Swann v. Poag, 4 S. C. 16; McCown v. King, 23 S. C., 232; Hayne v. Irvine, 25 S. C. 289.

The word “have” in the sentence, “if William Daniel Flemming should have any lawful heirs,” etc., also1 shows that the word “heirs” was there used in the sense of chil dren, or heirs of the body; and the fact that the estate should go to the one, if the other should die “without heirs,” and revert, if both should die “without heirs,” leads to the same conclusion, because, under the law, each would be the heir of the other, when dead, to say nothing of the probability of each leaving heirs general, as they had a living aunt and a dozen first cousins.

As it took all the personal property to pay the testator’s debts, it is not material what estate the appellants took therein.

Affirmed.

Messrs. Chiee Justice Gary and Justices Watts and Fraser concur in the result. Mr. Justice Woods absent.