Nicholson v. Cousar

The opinion of the Court was delivered by Mr. Justice Pope. This cause was submitted to Judge Witherspoon under section 374 of the Code of Procedure, and involved the validity of a proposed deed in fee simple from the plaintiff to the defendant for a tract of land containing 190 acres, and situate in Chester County, in this [211] State. The admitted facts underlying the controversy were about these: Elihu J. Dynn departed this life in 1875, leaving of force his last will and testament, by the terms of which the testator provided, amongst other things: “That the plantation and stock remain, and all things belonging to the same, as it is, subject to necessary changes to keep up the place as may be judged by my executor (James Drennan), and is to remain so during my wife’s lifetime, and after her death the property and money of my estate is to be equally divided among my children that may be alive at that time. * * * If it turns out that my children can’t stay on the place together, it is my will, and also my request, that Mr. Henry Drennan should take my two oldest boys, and take care of them, and I also appoint him their lawful guardian, to receive and pay over what may be coming to them of my estate. I also request my sister, Nancy Millen, to take my son, Robert, and take care of him as long as he may live, if necessary, and I appoint her his lawful guardian, to receive and pay out what money may be coming to him of my estate.” Said testator had as his real estate the plantation hereinbefore referred to. His wife, Maria, and three sons by a previous marriage, and one son, the child of the said Maria, were the heirs at law of the said testator. The two sons of the first marriage, of whom Mr. Henry Drennan was appointed guardian, and his son by his intermarriage with his last wife, Maria Dynn, all died unmarried and childless. Maria Dynn, as widow, and Robert Dynn, the son, alone now survive. Maria Dynn married one Millen, and moved off testator’s lands. In February, 1889, the son, Robert Dynn, procured a loan from the plaintiff, Sarah G. Nicholson, of $600, and to secure the payment thereof made a deed by way of mortgage of the whole 190 acres of land in regular form, and purporting to carry the fee. In 1890, the mortgage was foreclosed, and the land purchased by the plaintiff, Sarah G. Nicholson. On the 7th day of December, 1889, Sarah G. Nicholson, for a valuable consideration, received a deed from [212] Maria Millen, formerly Lynn, wherein she, the said Maria, conveyed in fee simple “all her right, title, and interest, whether an estate for life, estate in dower or of inheritance, or any other estate of any kind, which she had or may have in said lands.” Robert Lynn and the said Maria Millen are still alive. The plaintiff and defendant are not agreed as to the estate of the said Robert Lynn in said lands, and ask for a construction of the said will of the said Llihu Lynn. The cause came on to be heard before his Honor, Judge Witherspoon, by whose decree it was held that the plaintiff had acquired the fee simple title to said lands. This decree will be reported and also the defendant’s exceptions, as well as the additional ground for affirmance of such decree by the respondents. It is needless to attempt the discussion of the grounds of appeal seriatim; their object will be entirely subserved, we think, by the method we shall adopt in disposing of them. The Circuit Judge was correct in pronouncing the estate created in the children of Llihu Lynn, after the falling in of the life estate, carved out by such testator for his widow, Maria Lynn, who has since intermarried with one Millen, to be contingent remainders; the authorities he cites support this proposition. But we think this conclusion of the Circuit Judge must be limited to that disposition by testator in his will in which he contemplated the widow and all his children being able to live together upon his lands. The will when closely examined will, we think, show that the testator contemplated a second state or condition of his estate, and an entirely different result if that latter condition should prevail. In effect, he provides in his will: First. His widow and children shall all continue to live upon his plantation, using the property therewith connected, and that his wife should have a life estate in his lands, and the fee thereafter should vest in his children who should be alive at the death of his widow. Second. That if it should so happen that his children could not stay upon the place, that in that event, after the life estate of his widow, Maria, should [213] fall in, the whole estate, money, real and personal property, should belong to his children — the shares of the two oldest sons to be paid to and managed by his friend, Mr. Henry Drennan, who he appointed their guardian, and that of his son, Robert, to be paid to his sister, Mrs. Millen, whom he appointed Robert’s guardian. In this last event, the estates of the children would become vested remainders. The last event did occur, for Mrs. Maria Dynn moved from the place with one of the children, thus defeating the first scheme provided for in testator’s will. We think this last view of testator’s will is necessary to carry out its provisions, for the testator certainly contemplated in the first instance that his plantation, stock and all things belonging to the same should remain as they were at his death, and be kept in that condition, to afford a home for his wife and all his children — a life estate being given to his said wife — “during my wife’s lifetime,” and a contingent remainder to the children, “to be equally divided among my children that may be alive at the time” (of wife’s death). The party plaintiff is bound by the decision of this Court in Nicholson v. Drennan, 35 S. C., 333, to uphold the conclusion that Blihu Lynn’s widow took a life estate in the said lands. While in the last instance the testator certainly made an entirely distinct arrangement of his property, for he provided that if they could not all live upon this plantation, then his motherless Sons should have homes with Henry Drennan and Nancy Millen, who were appointed their guardians, and empowered to receive their respective estates as coming to them “out of my estate.” These guardians could not receive out of testator’s estate what testator did not provide for them in his will. Of necessity the testator must be considered as providing by his will that an equal share of his estate must be received by each one of his children. The law will assume that the testator meant, by such provisions in his will as we have been discussing, to create an estate requisite to the carrying out of such views. It is apparent from the whole will that the testator had no other beneficiaries in his view than his [214] wife and his children. If these views should not prevail, then there is another ground whereby the conclusion of the Circuit Judge may be established. If the testator by the second scheme of his will did not vest a fee simple in the lands in his children, certainly he did not in the first scheme. At death of testator the fee must vest somewhere. It is sheer nonsense in these practical days to speak of a title to lands— and by these terms we mean fhe fee — not vesting, on the death of a man, in some person then living. By' the first scheme of the will the title did not vest in the wife, nor children, nor executor. Then where was this fee? If a man by his will does not provide for the vesting of the fee, the law intervenes and vests it for him; it vests it in the heirs subject to the provision of his will. Then, if by the death of three of the children, unmarried and childless, the fee to the land became vested in the said Maria Lynn, now Millen, and Robert Eynn, and they were also respectively life tenant and sole contingent remaindermen, why will not the deed in fee simple of each one of them to Sarah G. Nicholson vest in her the absolute fee simple estate in these lands? To us this seems clear. Hence we can see no error in the judgment of the Circuit Court. It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. Mr. Chief Justice McIver concurs in the result, for the reasons stated by the Circuit Judge in his decree. MESSRS. Justices Gary and JONES concur in the result.