May 22, 1917. The opinion of the Court was delivered by
The first question that will be considered is whether there was error on the part of his Honor, the Circuit Judge, in ruling that the interest of the plaintiff in the property is one-sixth thereof. On the former appeal herein this Court held that the plaintiff, Harris P. Pearson, took as an executory devisee under the will. It is now necessary to determine whether Bettie Pearson, the mother of the plaintiff, took a vested or a contingent remainder.
When the Court adjudged that the plaintiff took under the will as an executory devisee, it could not have so ruled, unless it had also reached the conclusion that Bettie Pearson, the plaintiff's mother, had a vested interest in the property at the time of her death, which was prior to the death of the life tenant. The ruling of the Circuit Judge, that the plaintiff is entitled to a sixth of the property, is necessarily based upon the proposition that the remainders to the children of the life tenant were contingent, but that on account of the provision, "the children of any deceased child representing the parent," they were alternative or substitutional in their nature; that only those children of the life tenant living at the time of her death, and the children, then living, of those who had died prior to her death, were entitled to a share of the property.
In the case of Rutledge v. Fishburne, 66 S.C. 155,44 S.E. 564, 97 Am. St. Rep. 757, the Court had under consideration a devise by a testator "unto my said daughter, Sophia Sheppard Marion, for life, not subject to the debts of her husband, with remainder to her children, share and share alike, the child or children of a deceased child to represent and take the parents' share." Mrs. Fishburne, the daughter of Mrs. Marion, the life tenant, was in esse, when Mrs. Wilson, the testatrix, died. The question was as to the
right of the child or children of a deceased child. The Court said:
"Under the foregoing clause of the will, Mrs. Fishburne took a vested transmissible interest in remainder. If other children should be born unto Mrs. Marion, the remainder now vested in Mrs. Fishburne would open so as to embrace such children. If Mrs. Fishburne should die leaving no children, her vested interest would not revert to the estate of Mrs. Wilson (testatrix), but would descend to her (Mrs. Fishburne's) heirs generally, and be subject to distribution under the statute, just as any other property of which she might die seised and possessed. If, however, she should die leaving children at the time of her death, they would take, by substitution or executory devise, the interest which she otherwise would have taken."
In order to show that the child or children of a deceased child did not take as contingent remaindermen by substitution, but as executory devisees, the Court thus stated the distinction between a contingent remainder and an executory devise:
"Much of the confusion upon the question whether the language of a will creates an executory devise or contingent remainder has arisen from the failure to keep clearly in mind the marked and well defined differences in the characteristics of the two estates. If the words of the will out of which the contingency arises are relied upon for the purposes ofdefeating an estate which has already become vested, then this can only be done by construing them as an executory devise. But, if the question is which of two estates shallbecome vested, then such estates will be construed as remainders, alternative or substitutional in their nature; and such remainders are always contingent. Our conclusion is that such children would take by way of executory devise and not as contingent remaindermen."
This case clearly shows that Bettie Pearson took a vested transmissible interest, and that the plaintiff did not take as a
contingent remainderman by way of substitution. The principles just stated are in full accord with those announced in subsequent cases. In the case of Woodley v. Calhoun,69 S.C. 285, 48 S.E. 272, it was contended, as in this case, that the words "after her death" showed that the remainders were not vested, but contingent, on the ground that they could not vest, until the death of the life tenant, as it was uncertain until that event who of the children would be living. The Court held otherwise and quoted as follows fromGourdin v. Deas, 27 S.C. 479, 4 S.E. 64:
"It will be observed that the remainder is to the issue of Eliza C. Deas, not to her surviving issue, or to her issuethen living, which would have been the words that most naturally would have been used if the intention had been to confine the gift to such issue only as might be in esse, at the time of the death of the life tenant; but, on the contrary, as we have said, the remainder is to the issue generally in such terms as import a fee simple, which was to vest in possession
at the time of the death of the life tenant, and hence, as was said in Rutledge v. Fishburne, supra, `necessarily all falling within the description of issue up to that time are entitled to an equal participation in the estate.'"
In Walker v. Alverson, 87 S.C. 55, 68 S.E. 966, 30 L.R.A. (N.S.) 115, the rule is thus stated:
"There is a class of cases which closely resemble, in the rules of construction applicable, the case under consideration, in which vested remainders are limited in terms which seem to import contingency; but the contingent expressions are construed to denote merely the time when the estate is to take effect in actual possession, as, for example, when an estate is limited to one `if,' or `when,' or `as soon as' he attains a certain age, with a limitation over, in case he dies under the age specified, or dies under that age without issue, etc. There the words of apparent contingency are held, not to create a condition precedent to the right of enjoyment, or to denote the time when the interest shall vest, but merely
the time when enjoyment in possession shall commence, or when an estate already vested shall be divested."
Continuing, the Court also says:
"A limitation over in case of the prior devisee dying under certain circumstances, or before attaining a certain age, or in case of his dying before the life tenant, etc., is an argument in favor of the prior devisee's taking an immediately vested interest; for, as said by Tindall, C.J., in Phipps v.Ackers, 9 Clarke Fin. 583, the limitation over `sufficiently shows the meaning of the testator to have been that the firstdevisee should take whatever interest the party claimingunder the devise over is not entitled to, which, of course, gives him the immediate interest, subject only to the chance of its being divested on a future contingency.' It shows, therefore, that the prior devisee is the preferable object of the testator's bounty, from which a presumption arises of an intention that the estate should vest in him, subject to the divesting contingency."
Having reached the conclusion that Bettie Pearson took a vested transmissible interest, which has been defeated by the happening of the contingency upon which the executory devise was to become effective, we have also arrived at the conclusion that the plaintiff is only entitled
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May 22, 1917. The opinion of the Court was delivered by
The first question that will be considered is whether there was error on the part of his Honor, the Circuit Judge, in ruling that the interest of the plaintiff in the property is one-sixth thereof. On the former appeal herein this Court held that the plaintiff, Harris P. Pearson, took as an executory devisee under the will. It is now necessary to determine whether Bettie Pearson, the mother of the plaintiff, took a vested or a contingent remainder.
When the Court adjudged that the plaintiff took under the will as an executory devisee, it could not have so ruled, unless it had also reached the conclusion that Bettie Pearson, the plaintiff's mother, had a vested interest in the property at the time of her death, which was prior to the death of the life tenant. The ruling of the Circuit Judge, that the plaintiff is entitled to a sixth of the property, is necessarily based upon the proposition that the remainders to the children of the life tenant were contingent, but that on account of the provision, "the children of any deceased child representing the parent," they were alternative or substitutional in their nature; that only those children of the life tenant living at the time of her death, and the children, then living, of those who had died prior to her death, were entitled to a share of the property.
In the case of Rutledge v. Fishburne, 66 S.C. 155,44 S.E. 564, 97 Am. St. Rep. 757, the Court had under consideration a devise by a testator "unto my said daughter, Sophia Sheppard Marion, for life, not subject to the debts of her husband, with remainder to her children, share and share alike, the child or children of a deceased child to represent and take the parents' share." Mrs. Fishburne, the daughter of Mrs. Marion, the life tenant, was in esse, when Mrs. Wilson, the testatrix, died. The question was as to the
right of the child or children of a deceased child. The Court said:
"Under the foregoing clause of the will, Mrs. Fishburne took a vested transmissible interest in remainder. If other children should be born unto Mrs. Marion, the remainder now vested in Mrs. Fishburne would open so as to embrace such children. If Mrs. Fishburne should die leaving no children, her vested interest would not revert to the estate of Mrs. Wilson (testatrix), but would descend to her (Mrs. Fishburne's) heirs generally, and be subject to distribution under the statute, just as any other property of which she might die seised and possessed. If, however, she should die leaving children at the time of her death, they would take, by substitution or executory devise, the interest which she otherwise would have taken."
In order to show that the child or children of a deceased child did not take as contingent remaindermen by substitution, but as executory devisees, the Court thus stated the distinction between a contingent remainder and an executory devise:
"Much of the confusion upon the question whether the language of a will creates an executory devise or contingent remainder has arisen from the failure to keep clearly in mind the marked and well defined differences in the characteristics of the two estates. If the words of the will out of which the contingency arises are relied upon for the purposes ofdefeating an estate which has already become vested, then this can only be done by construing them as an executory devise. But, if the question is which of two estates shallbecome vested, then such estates will be construed as remainders, alternative or substitutional in their nature; and such remainders are always contingent. Our conclusion is that such children would take by way of executory devise and not as contingent remaindermen."
This case clearly shows that Bettie Pearson took a vested transmissible interest, and that the plaintiff did not take as a
contingent remainderman by way of substitution. The principles just stated are in full accord with those announced in subsequent cases. In the case of Woodley v. Calhoun,69 S.C. 285, 48 S.E. 272, it was contended, as in this case, that the words "after her death" showed that the remainders were not vested, but contingent, on the ground that they could not vest, until the death of the life tenant, as it was uncertain until that event who of the children would be living. The Court held otherwise and quoted as follows fromGourdin v. Deas, 27 S.C. 479, 4 S.E. 64:
"It will be observed that the remainder is to the issue of Eliza C. Deas, not to her surviving issue, or to her issuethen living, which would have been the words that most naturally would have been used if the intention had been to confine the gift to such issue only as might be in esse, at the time of the death of the life tenant; but, on the contrary, as we have said, the remainder is to the issue generally in such terms as import a fee simple, which was to vest in possession
at the time of the death of the life tenant, and hence, as was said in Rutledge v. Fishburne, supra, `necessarily all falling within the description of issue up to that time are entitled to an equal participation in the estate.'"
In Walker v. Alverson, 87 S.C. 55, 68 S.E. 966, 30 L.R.A. (N.S.) 115, the rule is thus stated:
"There is a class of cases which closely resemble, in the rules of construction applicable, the case under consideration, in which vested remainders are limited in terms which seem to import contingency; but the contingent expressions are construed to denote merely the time when the estate is to take effect in actual possession, as, for example, when an estate is limited to one `if,' or `when,' or `as soon as' he attains a certain age, with a limitation over, in case he dies under the age specified, or dies under that age without issue, etc. There the words of apparent contingency are held, not to create a condition precedent to the right of enjoyment, or to denote the time when the interest shall vest, but merely
the time when enjoyment in possession shall commence, or when an estate already vested shall be divested."
Continuing, the Court also says:
"A limitation over in case of the prior devisee dying under certain circumstances, or before attaining a certain age, or in case of his dying before the life tenant, etc., is an argument in favor of the prior devisee's taking an immediately vested interest; for, as said by Tindall, C.J., in Phipps v.Ackers, 9 Clarke Fin. 583, the limitation over `sufficiently shows the meaning of the testator to have been that the firstdevisee should take whatever interest the party claimingunder the devise over is not entitled to, which, of course, gives him the immediate interest, subject only to the chance of its being divested on a future contingency.' It shows, therefore, that the prior devisee is the preferable object of the testator's bounty, from which a presumption arises of an intention that the estate should vest in him, subject to the divesting contingency."
Having reached the conclusion that Bettie Pearson took a vested transmissible interest, which has been defeated by the happening of the contingency upon which the executory devise was to become effective, we have also arrived at the conclusion that the plaintiff is only entitledunder the will to one-eleventh of the property. The interest to which Bettie Pearson may have been entitled, as an heir of those children who died without children, did not increase the share which was vested in her by the provisionsof the will; and the same principle is applicable to the share which became vested in the plaintiff as executory deviseeunder the will. The property to which certain of the children became entitled, by reason of the fact that they were heirs of those children who died without children, was not given to them by the testator, but their right to it was derived from the statute of distributions. The rule is thus stated inBrantley v. Bittle, 72 S.C. 179, 51 S.E. 561:
"There are no words in the will manifesting an intention to create cross-remainders between those to whom the property was devised. The shares which Eliza J. Brantley inherited from her brother and sister were not subject to the provisions of the will, and she had the right to dispose of them as she saw fit. The principles applicable in such cases are stated in Boykin v. Boykin, 21 S.C. 513; Dickson v.Dickson, 23 S.C. 216; McGee v. Hall, 26 S.C. 179,1 S.E. 711, and Gordon v. Gordon, 32 S.C. 563, 11 S.E. 334."
See, also, Rutledge v. Fishburne, 66 S.C. 155,44 S.E. 564, 97 Am. St. Rep. 757.
The next question to be considered is whether there was error on the part of his Honor, the Circuit Judge, in his ruling that the plaintiff was entitled to have his rights adjusted without being compelled to await the adjudication of the other interest involved. If the only rights of the plaintiffs were those derived from the will, there might be some ground for holding that he was entitled to such an order. But there are other interests involved, affecting those of the plaintiff. There have already been two appeals in this case, and, if possible, there should not be another, until there is a final judgment, adjusting the rights of all the parties.
It is the judgment of this Court that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court, for such further proceedings as may be necessary to carry into effect the conclusions herein announced.