Avinger v. Avinger

The opinion of the Court was delivered by Mr. Chief Justice Gary. This is an action for partition of certain lands, and involves the construction of a will. About the year 1889. Daniel Avinger departed this life, leaving of force his last will and testament, which (omitting the formal parts thereof), is as follows: “The residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit: To my beloved wife, the land and appurtenances situated thereon, during the term of her natural life, and after her death to be divided equally among my heirs; or, in case my wife ceases to be a widow and marries again, then at her marriage, to be equally divided among my heirs then living, share and share alike.” The testator was married four times, and left a widow, Laura V. Avinger, who died in January, 1919. She, however, remained unmarried after the death of the testator. The testator’s first, second' and fourth wives had children, but the third wife did not. His Honor, the Circuit Judge, ruled that the remainders created by the will were contingent; that they did not become vested until the death of the widow; and, that the heirs of the testator living at the time of her death were entitled to the lands. , The exceptions assign error in these rulings. ' ' [127] 1 The well-recógnized rule is that when there is a devise to “heirs” as a class, they take at the death of the testator, unless a different time is fixed by the ■word “surviving,” or some other equivalent expression. McFadden v. McPadden, 107 S. C. 101, 91 S. E. 986. 2 The only other provision in the will upon which his Honor, the Circuit Judge, relied was that, in case his wife ceased to be a widow and 'married again, then, at her marriage, the land was to be equally divided among his heirs then living, share and share alike. The remainders in this provision were alternative, or substitutional, and therefore contingent. In order for these remainders to become effective it was essential for the widow to marry again, which contingency did not happen. As there is no other provision of the will preventing the application of the well-recognized rule already mentioned, it necessarily follows that the heirs of the testator, living at the time ,of his death, took vested remainders, which were not thereafter divested. Walker v Alverson, 87 S. C. 55, 68 S. E. 966, 30 L. R. A. (N. S.) 115. Reversed. Justices Watts, Eraser and Cothran concur.