Munro v. Pritchard

3 S.C.L. 318

• Court: Supreme Court of South Carolina
• Decided: January 15, 1804
• Status: Published

Opinion

Special verdict. In trespass to try titles to land, viz.: “ W& find that Alexander Russell, made and duly executed his last will and testament, on the 4th Feb. ]77i, and died leaving it in full force ; and by that will devised the premises i.< question to his two sons, Alexander, and Robert; and if they both should die under lawjul age, and without issue, then the said premises he devised to his three daughters, Jane, Elizabeth, and Margaret, and their heirs and assigns, share and share alike. And by a subsequent clause in his said will, devised by these words, “ If any, or either of my said daughters, shall happen to die before the age of twenty one years, or without issue lawfully begotten, I give, devise, and bequeath, the part of such child, or children, so dying, unto the survivor, or survivors, of them, and to their heirs and assigns, forever, share and share alike.” And we find that the testator’s said two sons died under the age aforesaid, and without ever having had any issue: and that afterwards the said Jane married Henry Lanchester, the said Elizabeth married Charles Morgan, one of the plaintiffs, and the said Margaret married John Munro, one of the plaintiffs : and that'afterwards, a writ of partition was issued to divide the premises, and some other real estate, between the testator’s said daughters; and a division was accordingly made, and the premises in dispute iu this cause divided and allotted to the said Jane Lanchester, as her part or proportion of the real estate. And we further find, that the said Jane died above the age of twenty one years, but without having ever hid any issue; and that after her death, the said Elizabeth died, leaving issue now living. We further find, that the said Henry Lanchester, and Jane, his wife, duly conveyed the said premises to Elias Smerdon ; and that during the life of the said Jane, the same premises were levied on, and legally sold and conveyed, as the estate oí said Smerdon, to the defendant, by the federal marshal for South Carolina district. And if, under all these circumstances, the court should be of opinion, that upon the death of Jane Lanchester above the age of 21 years, without ever having had any issue, the premises in dispute became vested in her said two surviving sisters, we then find for the plaintiffs the premises described in their declaration, and four dollars damages, with costs of suit. But if the court should not be of that opinion, then we find for the defendant.”

[ The arguments of counsel, and opinions of the court, were applied to the next case following, as well as to this. These two cases were argued and considered together, as they both turned on the construction of the same will. See the next following case.] Present, Ctrimke, Waties, Trezevant, and Brevard, Justices.