Gordon v. Gordon

11 S.E. 334, 32 S.C. 563, 1890 S.C. LEXIS 78

• Court: Supreme Court of South Carolina
• Decided: April 19, 1890
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

One R. C. Gordon died in 1852, leaving a last will and testament and eight children, to wit: Ezekiel E. Gordon, Rosa Ann McCord, Rebecca E. Wilson, Elizabeth Kirkwood, Robert Thomas Gordon, James Gordon, Jane Eliza Gordon, and Mary Watt Gordon, all of whom were beneficiaries under said will, except Elizabeth Kirkwood, to whom he gave nothing. To Rosa Ann McCord he bequeathed a legacy of $1,000 during her life, and at her death to go to her children; and to Rebecca E. Wilson a similar legacy, upon the same terms and limitations; and to Ezekiel E. Gordon $500 absolutely ; and then, in the seventh and eighth clauses of his will, he devised and bequeathed as follows: Seventh clause. “I give and devise and bequeath unto my two sons, James and Robert Thomas, all my lands and real estate, to them and their heirs ; but if either of my said sons should die without issue, living at the time of his death, then I give his part of the lands to the survivor; and if the survivor should die without leaving issue at the time of his death, then that I give the same to my other children, subject to the same limitations as is provided as to bequests to them respectively. It is distinctly understood, and I so order and direct, the said lands shall be a home for my wife and two single daughters for and during their lives, or so long as they may choose to live thereon. (8) I give and bequeath unto my four children, in equal shares, to wit, James Gordon, Robert Thomas Gordon, Mary Watt Gordon, and Jane E. Gordon, all my negroes, stock of every kind, plantation tools, the balance of my money on hand, bonds, notes, and all the rest and residue of my estate, of every description, for and during their natural lives, with remainder to such child or children as either of them should leave living at the time of his or her death respectively, as to his or her share ; and if either of my four children should die without leaving issue, living at the time of his or her death, then his or her share to go to the survivors; and if the last survivor should die without leaving issue, living at the time of his or her death, then I give the-estate and property hereby given to them to my other children herein named, share and share alike, subject to the same limitation as is provided in the bequests given to them respectively.

Ezekiel Gordon died after his father, unmarried and intestate. Rosa Ann McCord, and Rebecca Eveline Wilson also died after their father, both leaving children; and James Gordon died after the father, leaving children.. Then Robert T. Gordon died, unmarried, and intestate, leaving surviving him of his brothers and sisters Mary Watt Gordon and Jane Eliza Gordon and Mrs. Kirkwood. Robert T. Gordon left a considerable estate of his own, besides the interest he had under the will of his father, as provided in the seventh and eighth clauses thereof, supra. The plaintiff, Jane E. Gordon, administered upon his estate; and she instituted the action below for the construction of the will of R. C. Gordon as to the rights of the parties under the seventh and eighth clauses, and for directions as to the distribution of the estate of her intestate in connection therewith. The case was heard by his honor, Judge Fraser, upon the pleadings. It is proper to state here that in 1859, prior to the death of James Gordon, under proceedings in equity, a partition of the real estate embraced in clause 7 of the will had been made between James and Robert T., subject to the limitations in the will, and also a partition of the personal property mentioned in clause 8 among the parties thereunder entitled thereto.

Judge Fraser ruled and decreed, James Gordon having died before his brother, Robert T., leaving children at his death, that his share of the real estate, under the seventh clause of the will, went to said children, and that the share of Robert T., the survivor, although he died leaving no issue at his death, had not been defeated; his honor holding that these brothers took a defeasible fee in the land, the defeasance depending on a double contingency : (1) Death without issue living at the time of death; and (2) having a survivor — and as Robert T. died with no survivor living, his fee had not been defeated, and therefore his allotted portion of the said land was his own, going to his heirs at law, &c. As to the property embraced in the eighth clause, his honor ruled that the share of Robert T. therein, at his death, leaving no issue, went to his two surviving sisters, Mary Watt Gordon and Jane Eliza Gordon, named in said eighth clause; and these two being aged ladies, he further adjudged the rights of the parties who might be entitled after their death, holding that the interest of those in remainder, in case they died without issue, if not vested, was at least transmissible. He decreed that upon the death of the said two sisters the property embraced in the eighth clause would go to the children of James Gordon, Rosa Ann Gordon, and Mrs. Rebecca Gordon, each one-third; that is, the children of each living at their respective deaths should take one-third among them. And he directed that the estate of Robert T., real and personal, including his portion of the land mentioned in the seventh clause, should be distributed as intestate property under the statute; further directing that it be referred to the master to ascertain who were entitled under the principles announced in this decree.

The question now before us on appeal is whether his honor’s construction of the seventh and eighth clauses of the will of R. C. Gordon was correct. As to the seventh clause, we concur with the Circuit Judge. Of course, in all such matters, the intention must control; and this must be ascertained and reached by the words used, unless there is such ambiguity as to need other aid. In this clause we see no such ambiguity. As we read it, confining ourselves to the exact words emplojmd, the intent seems plain. There is no doubt but that a fee was given in the first instance to these two sons ; the devise of the land being to them and their heirs. It is equally certain that this fee was not to be defeated as to either one if he left children living at his death. It seems plain, too, that if either one died leaving no children at his death, and left the other surviving, his share should go to his survivor, and upon the death of'such survivor, leaving no children, this accrued interest should go to his other children, subject to the limitations provided for in the bequests given to them in the other portions of the will.

This construction is in exact accordance with the terms of the clause wherein it is stated that if either son dies without living issue at his death,’his share shall go to the survivor, and if the survivor dies leaving no such issue, that that (share, no doubt) should go over to his other children. Now, James died leaving children. His portion of the land then descended to his children, as he was seized in fee, which fee had not been defeated by the defeasance provided, so that no accrued share went over to Robert T., limited over to the other children upon his death, leaving no issue. It is true that Robert T. died, leaving no issue, but this was not the only contingency which was to defeat the fee. The fee was to be defeated by this and a survivor, and Robert T. left no survivor. He was the last survivor himself, and his fee not being defeated then, his portion of the land descended subject to division and distribution under the statute as held by his honor below. There was a defeasible fee given to each of these sons, subject to a defeasance in each by death leaving no issue and by a survivor. James died leaving children, therefore his fee was not defeated. Robert T. died leaving no survivor, therefore his fee was not defeated.

As to the eighth clause, we do not concur with the Circuit Judge. No doubt that the share of Robert T. in the property therein bequeathed, at his death, leaving no issue, went to his surviving sisters therein named, by the express terms of the clause, with limitation over, upon the death'of the last survivor leaving no issue, to the other children of the testator, share and share alike, subject to the same limitations as is provided in the bequests to them respectively in the will. It will be noticed that in this clause when the testator speaks of the property which he intended to go over to his other children at the death of the survivor, he refers to it as “the estate and property hereby given to them (to wit, the four children therein mentioned), the whole property, including the accrued shares, as well as the share of the survivor. This language is very different from that used in the seventh clause, and seems significant of intent.

Now, the two surviving sisters are still alive, but they are advanced in years, and assuming that they will die leaving no issue living at their death, the Circuit Judge adjudged the rights of the parties, in that event holding, as stated above, that the property would then go to the children of James, Rosa Ann, and Mrs. Rebecca Wilson. This holding seems to have been based upon that portion of the eighth clause which directed that when the property went over to the other children upon the death of the survivor, it should be subject to the same limitations as are provided in the bequests given to them respectively. And inasmuch as the only children whose bequests were burdened with limitations over were Rosa Ann, Mrs. Wilson, and James, and as these were the only ones who left children, his honor thought that they were the ultimate beneficiaries.

We are satisfied that neither Mrs. Kirkwood nor Ezekiel Gordon’s estate is entitled to any share in this property. Mrs. Kirkwood is not named in the will, and there is no limitation attached to the legacy given to Ezekiel, and we are satisfied that the estates of Rosa Ann and Mrs. Wilson are entitled, as they are both named in the will, and were of the other children, and their respective legacies had limitations attached. But we do not see how the estate of James can come in. He was one of the four children to whom the property mentioned in clause 8 was given on the terms therein specified, and this property in that clause was directed, upon the death of the survivor of the four, to go to the testator’s other children herein named, subject to the limitations attached to their bequest. We think that the word “other” therein points to the children not named in that clause, but named elsewhere in the will, and the words “herein named” refer to the will, and not to the eighth clause; and subjecting this bequest over to the limitations provided for in the previous bequests, we think, point to those to whom bequests had previously been given, with limitations, and these were Rosa Ann and Mrs. Wilson; and it is our conclusion that their estates will be entitled to this property after the death of Mary Watt Gordon and Jane Elizabeth Gordon leaving no issue at their death. This, it seems to us, is the right conclusion, based simply upon an analysis of the language of the two clauses, and we think that this is sustained by the cases in which subjects of this character have been discussed, especially as to the seventh clause in the case relied on by his honor (Lowry v. O’Bryan, 4 Rich. Eq., 262).

The doctrine of cross-remainders has been invoked adverse to the Circuit decree. We do not see the application of that doctrine here. This doctrine has arisen in England, mostly in cases as follows: where an estate has been given to two and the heirs of their body, and in default of issue, then over to the grantor’s right heirs. The question has arisen whether the testator intended that there should be an entire failure of issue as to both of the original grantees before the right heir should be entitled to anything; or whether, in case there was a failure of issue as to either one, the right heir should at least become entitled to that share, the other share remaining with children of the one leaving children; or whether, in case one died leaving issue, and the other died leaving no issue, the whole estate was intended to remain with said issue, by way of cross remainder, postponing the ultimate gift to the right heir. It was in this latter class of eases that this doctrine of cross-remainders came in, and it depended entirely upon the intention of the testator, the turning point being whether he intended the entire estate to pass to the right heir as a whole, upon failure of issue as to both grantees, or that this ultimate gift should take effect in whole or'in part, as either one or 'both died without issue. As stated above, this doctrine of cross remainders at first was confined to estates given to two only. In later cases, however, it has been extended to three or more resting upon the same principles, with increased complication and difficulty.

• Testing the seventh and eighth clauses by these cases, we think our conclusions above are fully sustained. The object of the cross-remainder doctrine is to carry out the intent of the testator. Now, did the testator here intend, in either of these clauses, that the ultimate gift should not take effect unless the whole property went. In other words, that it should remain with the original grantees and their issue, as long as there were issue, before going over, or did he intend that the issue of each should take the share of the parent, and the share of each leaving no issue should go over, as the event occurred ? As we have already argued above, we think the language of botín clauses points to a disintegration of the property into shares, each share going as the contingency upon which it rested required, and that there was no purpose to keep it consolidated until there was an entire failure of issue, and then go over as a whole. See the case of Doe on Demise of Gorges et al. v. Webb, 1 Taunt., 237; Wright v. Holford, 1 Cowp., 31 ; Phipard v. Mansfield, 2 Id., 797 ; Atherton v. Pye, 4 T. R., 710.

As to the exception that his honor did not direct the master to ascertain the liability of the estate of Robert T. Gordon, to account for the property bequeathed to him by the 8th clause of the will. His honor did order a reference to the master requiring an accounting of the estate of Robert T. Gordon, with the right to have such order as might be necessary. We think this was sufficient, inasmuch as the manner of the accounting, and the extent of liability, may come up upon the report of the master. Watson v, Foxon, 2 East., 36 ; see, also, our cases, Seabrook v. Mikell, Chev. Eq., 86; Lowry v. O'Bryan, 4 Rich. Eq., 262.

It is the judgment of this court, that the judgment of the Circuit Court be modified as herein above, so as to exclude the children of James. In all other respects it is affirmed.