Tindal v. Richbourg

74 S.E. 932, 91 S.C. 404, 1912 S.C. LEXIS 247

• Court: Supreme Court of South Carolina
• Decided: May 15, 1912
• Docket: 8207
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Chirp Justicr Gary.

This is ah action for partition, ánd involves the construction of a will.

On the 28th of April, 1902, Amzi Tindal departed this life; leaving in full force and effect his last will and testament, which contained these provisions: “I give, devise and bequeath all of my property, both real and personal of whatsoever kind, that I am now or may be at the time of my decease ‘possessed,’ to my beloved wife, Winnie Tindal, for her sole use and benefit, during her natural life. -

2.- “That after the death of my wife, Winnie Tindal, I desire that all. of the property, both real and personal, not used bji executors hereinafter named, for the support and maintenance of my wife, thé said Winnie Tindal, be equally divided among my three children, Alexander A. Tindal, Alvina Richbourg and Ladson Tindal, if they be living, and if they or either of them should be dead, to the child or children of the deceased one, in like proportion as the parent would have inherited, had they'been living.”

Winnie Tindal, wife of the testator, died on the 25th of November, 1910. Alexander A. Tibdal and Ladson Tindal, children of the testator, survived their mother, Winnie Tindal. Alvina Richbourg, daughter of the testator, died prior to the death of her mother, Winnie Tindal, to wit, in 1907, leaving, among other children, her daughter, Mattie, who had married a man by the name of Montgomery. Mattie Montgomery departed this life in 1909, leaving her husband and three children, who are also claiming an interest under the will.

On the 17th of November, 1908, Mattie Montgomery conveyed to J. H. Rigby her entire interest under the will.

The sole question in the case is, whether his Honor, the Circuit Judge, properly construed the will of Amzi Tindal, in holding that Mattie Montgomery, took no interest under the will, and therefore that J. H. Rigby had none.

My construction of the will is, that the testator gave and devised the said land, unto his wife, Winnie Tindal, for and during the term of her natural life, and at her death, to be equally divided among his three children, Alexander A. Tindal, Alvina Richbourg and Ladson Tindal, the child or children of a deceased child to take the share his or their parent would have taken.

In the case of Brown v. McCall, 44 S. C. 503, 22 S. E. 823, that great jurist, Mr. Chief Justice Mclver, delivered an exceedingly able opinion, in which he announced the doctrine that governs this case. In that case, a tract of land was settled by the court of equity upon a married woman, by directing the conveyance of the land to a trustee, to hold in trust for her for life and then for her present husband for life, and after the death of the survivor, to the use of her children 'by her first husband, the issue oí a deceased child taking, by representation, the parent’s share, and the other half to* her issue by her second husband, the issue of a deceased child taking, by representation, the parent’s share.

The Court held 'that “the children took vested transmissible interests, and that the shares of such of them, as died before the surviving life tenant, passed to their vendee or heirs at law, provided they left no issue; but if they left issue, who survived the life tenants, then their shares could not be claimed by their vendees or heirs at law, but were divested by the express terms of the deed, and vested in such their issue.”

In the case of Rutledge v. Fishburne, 66 S. C. 155, 44 S. E. 564, the Court had under consideration the construction of a will, in which there was a devise to' a certain person for life, with remainder to her children, share and share alike, the child or children of a deceased child, to represent and take the parent’s share, and it was held that these words created, a vested transmissible interest in remainder, to1 the child of the life tenant, and that children born to her during the life of the life tenant, took by way of executory devise. The Court used. this language: “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 purpose of defeating 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 the two' estates shall become 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.”

These principles are sustained by the cases of Woodley v. Calhoun, 69 S. C. 285, 48 S. E. 272, and Brantley v. Bittle. 73 S. C. 179, 51 S. E. 561.

The judgment of the Circuit Court is reversed.

Messrs. Justices Hydrick and Watts concur in this opinion.