Rish v. Wingard

The opinion of the Court, reciting the foregoing statement of facts, was delivered by Mr. Justice; Fraser. There are two questions: (1) The meaning of the word “heirs.” (2) The effect of marriage. 1 1. It is very manifest that the word “heirs” cannot have its technical meaning. If either should die without heirs, then to her sisters. The sisters are heirs in default of issue. Neither could die without heirs, if she left a sister. That would make a contradiction in terms. It is very manifest that the word “heirs” is used as synonymous with the word “issue.” See DuBose v. Flemming, 93 S. C. 182, 76 S. E. 277. There was no disposition of the estate on the death of the survivor of the four without issue; therefore, under section 3'571, Code of 1912, the survivor of the four took a fee simple. 2 2. Marriage could only effect a separation of possession, because there might be marriage without issue, and in the event of the death of one of the four without issue her share went to the survivor or survivors. There is nothing in the will to indicate a different intention. The judgment is reversed. Footnotes [—] Footnote — Limitation over on death without issue, see notes in 61 L. R. A. (N. S.) 486.