Guy v. Osborne

The opinion of the Court was delivered by *293 Mr. Justice Woods. John Blair died in 1848, leaving .a will which contained' the following- devise: “To my •nephew, Samuel Blair, during his natural life, I give and bequeath in trust, and at his decease, I give and bequeath to bis surviving issue, * * * my tract of land: (describing the lands). But should my said' nephew die without any surviving issue of his body, * * * the said lands * * * herein bequeathed to bis children, I allow to descend the oner half to my nephew, John B. Eowrey, or to his' children; and -the other half to the children of my half cousin, James Blair, senr.” Samuel Blair, the devisee, married in January, 1848, and. bis first child was born in July, 1849, after the death of the .testator. Two children of Samuel Blair, Martha C. Guy ..and John C. Blair, survived their father, who died in Ooto^ber, 1907; another child, Mary Agnes Patrick, predeceased her father, leaving children. The question® submitted to the Circuit Court and brought by appeal to this Court are: Did Samuel Blair take a fee conditional? If not, did the •expression1, “surviving' issue,” refer to issue generally, so -that after the death of Samuel Blair the land passed to his ■surviving children, and the children of 'his predeceased ■d'aughtei, or did testator so limit the meaning of the expression as to exclude all issue of Samuel except his children living at the time of his 'dearth, The Circuit Court held that at the death of Samuel his two surviving children, each took -one-third of the land, and the children of the deceased child, Mary Agnes Patrick, the remaining third. The testator, by limiting the devise in remainder to the .■surviving issue of Samuel Blair instead of to his issue in 'indefinite succession, gave Samuel a life estate and not a fee ■conditional. McCorkle v. Black, 7 Rich. Eq. 407; Gadsden v. DesPortes, 39 S. C. 131, 17 S. E. 706; Davenport v. Eskew, 69 S. C. 292, 48 S. C. 223. The Court has recently 'held that the word issue used without qualification will be -generally construed to.have the same import as the words, *294 heirs of the body. Rembert v. Catoe, 89 S. C. 198. Therefore, if the words', “surviving issue,” stood without further qualification all who were heirs of the bddy of Samuel Blair would take at his death in the proportion fixed by the statute of distribution. But the words issue or heirs of the body are often construed to mean children, when the testator has clearly expressed his intention to use the words in that sense. Duckett v. Butler, 67 S. C. 130, 45 S. E. 137; Rembert v. Catoe, supra; Reeves v. Cook, 71 S. C. 275, 51 S. E. 93. In saying immediately after the direct devise to Samuel for life and after his death to “Ibis surviving issue,” “the said lands * * * herein bequeathed to hi® children, I allow to descend,” etc., -the testator clearly indicated that he meant to use the words “his surviving issue” in the sense of his surviving children. It follows that the remainder was. to the surviving children of Samuel Blair to the exclusion of the children of a child who did not survive him. It is the judgment of 'this Court that the judgment of the Circuit Court be reversed. Mr. Justice Watts disqualified.