Hudson v. Leathers

139 S.E. 196, 141 S.C. 32, 1927 S.C. LEXIS 59

Opinion

The opinion of the Court was delivered by

Mr. Justice Beease.

This suit was brought in the Court of Common Pleas of Greenville County for the construction of certain clauses of the last will and testament of Mrs. Rosaline Hudson, deceased. The cause was referred to Master Inman. His report was favorable to the views and contentions of the plaintiffs, and the report was confirmed by Hon. T. J. Mauldin, Circuit Judge. The will, master’s report, and the decree of the Circuit Judge will be incorporated in the report of the case.

The action was instituted by Wilton T. Hudson and William Austin Hudson, individually and as executors of said will, and by Annie Lee Hill and Waddy H. Hudson, against Lois Hudson Leathers and all the living children and grandchildren of plaintiffs, who are made defendants individually and as representatives of a class, to wit, the class comprising all of the plaintiffs’ descendants who may be living at the timé of the death of the said Lois Hudson Leathers. The four children of testatrix, mentioned in item 2 of the will, survived testatrix; William A. Hudson, mentioned in said item, predeceased testatrix. The other beneficiary mentioned in said item, Lois Hudson Leathers, is the son of a predeceased daughter of testatrix and is one of the defendants herein.

The complaint prays that the Court construe said will in three particulars, to wit:

“ (1) Whether the lands and Other property to be allotted to Lois Hudson Leathers under the terms of said will are to be held in trust until he,shall attain the age of 21 years, and then become the absolute property of the said Lois Hudson Leathers, freed and discharged of all trusts, or whether they are to be held in trust during his entire lifetime.

“(2) If the latter construction be correct, then whether the trustees of the said Lois Hudson Leathers are to pay him the whole or any portion of the income accruing upon said property after he shall attain the age of 21 years; and whether said trustees will have power to sell said property and convey a valid title thereto at any time during the life of said Lois Hudson Leathers, or after his death.

“(3') Whether, if the plaintiffs execute and deliver to said Lois Hudson Leathers a deed conveying to him all their interest in the property which may be allotted to him under said will, such deed will be effective to bar the contingent remainder apparently created in favor of said plaintiffs under the fourth item of said will, or whether, if the plaintiffs, or any of them, shall predecease the said Lois Hudson Leathers, and he shall happen to die unmarried and childless at any time after attaining his majority, the descendants (who then may be in existence) of such of the plaintiffs as may have died prior to that time can have any claim to said lands by w’ay of contingent remainder or otherwise.”

The exceptions here question the correctness of the conclusions reached by the master and Circuit Judge. Without considering these exceptions sáriatim, we proceed to a determination of the questions presented. The will, we think, is clear and free from difficulty.

Item 2 directs that the estate of testatrix, both real and personal, be divided into six equal parts, and gives one part to each of her named four children (the plaintiffs herein), one part to two of said children as trustees for Lois Hudson Leathers, and the other part to the same two children as trustees for the husband of testatrix, William A. Hudson.

Item 3 provides the manner or methods of effecting said division: (1) By agreement, between and among the said beneficiaries; (2) if such agreement cannot be had, then by three disinterested parties appointed as therein provided; (3) if plans (1) and (2) for any reason be impracticable, then executors to sell the property' at public outcry upon such terms as they may deem expedient, and divide the proceeds among the parties mentioned in item 2 equally. The executors are directed to execute deeds to the several parties in any event. We gather that division has been made in accordance with plan (1), and deeds have been executed by the executors to the several parties.

Item 5 relates to the part intended for testatrix’s husband, but since he predeceased her it becomes inapplicable.

Item 6 provides that in case either or all of the four children named in item 2 should predecease testatrix, the part or parts given to such child or children should inure to the benefit of the respective children of such predeceased child or children of testatrix per stirpes. Construing items 2 and 6 together, therefore, in so far as the four named children are concerned, we have this situation, to wit: One equal share was intended for each of said four children, provided he or she survived testatrix, but in the event he or she predeceased testatrix the children of such predeceased child were substituted in the place and stead of their parent to take among them per stirpes the share the parent would have taken, had he or she survived testatrix. Since the said four children survived testatrix, this alternative provision can never become effective, and, necessarily, is inapplicable. It will further be noted that item 6 provided that the provisions made for said children should inure to the benefit of their respective children in case of death before testatrix. The provisions here referred to not only embrace the part given in item 2, but also any prospective interests under the limitations over to them in items 4 and 5. Upon their survival of testatrix, the provisions made for her said children by testatrix became absolute and indefeasible.

It remains to consider the provision for the defendant Lois Hudson Leathers. What estate did he take under the will ? Item 2 gives one part to trustees for him, and item 4 directs that said trustees should hold the same until he attains his majority, unless he sooner dies, the income thereof to be expended in his maintenance and education. The active duties will prevent the statute of uses from executing the use or trust during the minority of Lois. There is no direction for the trustees to convey to Lois said part upon his attaining his majority. The trust will therefore cease if and when he attains his majority, and the statute of uses will then execute the use and transfer the legal title to him irrespective of whether or not a formal deed is then executed to him by his trustees. If he fails to attain his majority, the trustees are directed to divide said portion among the other devisees under the will. This proceeding does not relate to this limitation. It has only to do with the estate Lois will take if and when he attains his majority. Plaintiffs do not contemplate, we gather from the record, the divesting or barring themselves of and from the limitation over to them in the event Lois should die before attaining his majority. They only propose to deed him any and all interest they may have under the limitation over to them, should Lois attain his majority and then die unmarried and childless, if by so doing they can give him a fee-simple absolute and indefeasible. We then proceed to determine the kind of estate Lois will have upon his attaining his majority. Upon this point the will provides as follows:

“And if my said grandson should die after attaining his majority, unmarried and childless, I direct 'that the portion allotted to him be divided equally among the other devisees herein according to the terms of this will.”

The other devisees mentioned in the will are the plaintiffs, children of testatrix (and in the event of the death of them or either of them prior to the death of testatrix, their respective children are substituted in the place and stead of them, w¡hich provision is now inapplicable since testatrix’s children survived her), and the husband of testatrix. Since he predeceased her and the provisions made for him have become inapplicable, all parties to this action have regarded the estate of testatrix as divisible into five equal parts, and one of said parts passing under the will to each of the plaintiffs and one part to the defendant Hois Hudson Heathers. We therefore adopt this • construction for the purposes of this action.

It is the opinion of this Court that, upon his attaining his majority, the defendant Hois Hudson Heathers will take a fee-simple estate in the share allotted to him defeasible upon his death thereafter unmarried and childless. Should Hois attain his majority and then die unmarried and childless, the limitation over will be good as it is not in violation of the rule against perpetuities. Since Hois will, upon his attaining his majority, take a fee-simple estate in the share allotted to him, the limitation over cannot take effect as a remainder, as it is a cardinal rule that no remainder can be limited after a fee. Such a limitation can take effect, however, as an executory devise if it appear in a will'as in this case. At page 553, Tiffany, Real Property (2d Ed.), it is said:

“Similar to shifting uses are those executory devises which are preceded by a limitation of an estate in fee-simple to another. Thus, in the case of a devise to A. and his heirs, but, if he died before 21, then to B., the fee shifts from A-. to B. on that event. In such a case, as in the case of a shifting use, the condition is precedent to the commencement of the estate in B., and is not a condition subsequent annexed to the estate of A. Shifting uses and executory devises which thus take effect in derogation of estates pre viously limited by the same instrument are frequently termed 'conditional limitations.’ ”

Clearly, it was the intention of testatrix that Lois should have, upon his attaining his majority, a fee-simple estate in the share allotted to him, not absolute, but subject to be divested upon his death thereafter unmarried and childless. The limitation over, upon the happening of said event, was to take effect in derogation of the estate previously limited to him, and is that branch of a conditional limitation known as a shifting executory devise.

Since there is no substitution of the children or other issue of plaintiffs in the event they (plaintiffs) should die prior to the death of Lois, they, and they only, are the executory devisees. Had testatrix so desired, she could have made such substitution, and had she done so and had the primary executory devisees died before the death of Lois unmarried and childless, then, and in that event, such substitutional executory devisees would have taken directly under the will as purchasers. Since there is no such substitution, to hold that the children or other issue of plaintiffs would have any interest in said executory devise as purchasers would be to add a provision to the will not contemplated by testatrix.

Having determined that plaintiffs only are executory devisees, we next inquire, What kind of estate do they take? In Tiedeman on Real Property, Section 531, it is said:

“Executory Devises, Vested or Contingent. — The devise is vested where the person who is to take is in esse, and is ascertained, and when the event upon which he is to take is also certain. Such a devisee takes a vested future estate. When the estate is to vest upon an uncertain event or in a person not definitely ascertained, the executory devise is contingent and partakes of the nature of a contingent remainder.”

In this connection, it is proper to call attention to the double meaning of the term “vested.” Section 118 of Gray on Perpetuities is as follows:

“The term ‘vested’ has been hitherto considered (i. e., in the preceding Section) as it is used in questions of remoteness ; but it has also another meaning, which is so frequently given to it, that it cannot be styled improper. Such double meaning is, however, very unfortunate, as it has led to much confusion. This other meaning of ‘vested’ is ‘transmissible.’ Thus, if an estate is given to A. and his heirs, but'if he dies unmarried then to B. and his heirs, here, in the first sense, B.’s interest is not vested, for it is subject to a condition precedent; in the second sense, it is vested, for it is transmissible to B.’s heirs. The rule against perpetuities does not concern itself with this secondary meaning of the word ‘vested.’ Thus if an estate is devised to A. and his heirs, with an executory devise over to B. and his heirs in case A. or his heirs ever cease to bear the name of the testator, the executory devise to B. is vested in the secondary sense, because it is transmissible from B. to his heirs; but it is nevertheless too remote, for in the primary sense it is not vested but contingent; that is, it is subject to a condition precedent.”

In the secondary sense, the limitation over is “vested” because it is to persons in esse and ascertained, but in the primary sense it cannot become vested until the happening of the event which would cut short the estate of Lois, to wit, his death after attaining his majority unmarried and childless. Since the limitation over is “vested” in .the sense that it is transmissible, it may be by plaintiffs devised, released, or in case of intestacy, it will descend to their heirs.

“At common law executory interests are but possibilities, and therefore not assignable by act inter vivos. In equity such interests are assignable upon the ground that the assignment is a contract whose specific performance will be decreed. In process of time the Courts of law took a more liberal view of such interests, and held them to be possibili ties coupled with an interest, and as such assignable, devisable, and transmissible by descent. An executory interest may likewise be released, or the person entitled may be es-topped by his warranty deed.” 21 C. J., 1023, par. 231.

“Executory devises are now generally considered not as bare possibilities, but as certain interests and estates, and as such to be assignable, devisable, and transmissible to the representatives of the devisee, provided that the identity of the latter is certain, and that the object of the devise is fixed. Such executory devises descend upon the death of the devisee in the same course of descent as does other real estate or interest in real estate in all cases where the will establishing the devise described the devisee with certainty.” 11 R. C. L., 484, § 25.

“Executory devises or bequests are not naked possibilities but are in the nature of contingent remainders, and are transmisible and consequently devisable.” 40 Cyc., 1049.

See, also, 18 C. J., “Descent and Distribution.” § 24; McDonald's Exor. v. McMullen, 2 Mill Const., 91; Dickson v. Dickson, 23 S. C., 216.

Having held that plaintiffs, upon their surviving testatrix, took a transmissible executory interest in the share allotted to Eois, and that neither their children nor other issue took any interest as purchasers under said will, it follows that plaintiffs may, if they so desire, convey said interest to Lois and thereby divest themselves of all interest in said executory devise, and by general warranty may bind their heirs, executors, administrators, and all other persons as effectually as they can by a general warranty deed to any other property they may own.

The exceptions are overruled, and the decree of the Circuit Court is affirmed.

Mr. Chibe Justice Watts and Messrs. Justices Stabler and Carter concur. - Mr. Justice Cothran did not participate.