July 24, 1913. The opinion of the Court was delivered by This is a controversy without action, under sections 413 and 414 of the Code of Procedure, for the purpose of determining whether the plaintiffs who entered into an agreement with the defendant to sell the land described in the complaint, have such a marketable title, as the defendant is bound to accept.
Albert Bischoff departed this life, leaving of force his last will and testament, the second and third items of which are as follows:
Item 2d. "All the rest and residue of my real estate and personal property whatsoever, I give and bequeath unto my beloved wife, Anna Martha Bischoff, that is to say, during her natural life, and after her death, the whole real and personal property to be divided equally, between my beloved children, share and share alike, viz.: (naming them)."
Item 3d. "In case any of our children should die and not leave any issue living, then his or her share or part shall be equally divided between our children then living or their issue, share and share alike, the issue if any are entitled and receive the parent part."
The question submitted to the Court was: "Whether or not under the terms of said will, the testator intended the first clause in item third to mean, in case any of his children should die at or prior to the time of the death of the life tenant, or whether or not he intended the said clause in said item to provide, in case any of his children should die at any time and not leaving issue, etc., and whether or not, under the terms of said will, the plaintiffs in this case (who survived the life tenant) have a fee simple title."
His Honor, the presiding Judge, in concluding his decree, thus ruled:
"Taking, therefore, the will as a whole, and endeavoring to make all portions of same consistently harmonize, I think it was the intention of the testator in item 3d, to *Page 283 provide for the contingency of any of his children dying, prior to the time of distribution, to wit: the death of the life tenant, and I so hold."
The defendant appealed, and said conclusion is assigned as error.
Section 3551, Code of Laws (1912), and known as the act of 1853, is as follows: "Whenever in any will of a testator, hereafter dying, an estate either in real or personal property, shall be limited to take effect, on the death of any person without heirs of the body, or issue, or issue of the body, or other equivalent words, such words shall not be construed to mean an indefinite failure of issue, but a failure at the time of the death of such person."
The words, "The issue if any are entitled and receive the parent part," refer solely to the manner of distribution and were intended to indicate that the share of a child dying without issue, should be divided between the testator's children then living, and the issue of testator's children then dead, per stripes and not per capita.
The third section of the will must be read, as if the provisions of section 3551, Code of Laws (1912), were incorporated in it, which would then read as follows:
"In case any of our children should die, and not leaving any issue living at the time of the death of such person, then his or her share or part, shall be equally divided between our children then living, or their issue, share and share alike, the share of a child dying without issue living at the time of the death of such person, to be divided between the testator's children then living, and the issue of the testator's children then dead, per stripes and not percapita."
The Court thus construed the word "then" in Mangum v. Piester, 16 S.C. 316: "The word, as an adverb, means `at that time,' referring to a time specified, either past or future. It has no power in itself to fix a time. It simply refers to a time already fixed. The question here is: What *Page 284 time do the words `dying without issue' unqualifiedly fix? Do they fix an indefinite period, when there shall be no issue, or do they fix a definite period, to wit: the death of W.B. Griffin? They must have been used with reference to one or the other, and, having been thus used, the adverbthen following them, would refer to the one or the other as their proper construction might indicate as the time intended. To assume that the use of the word would, in itself, fix a certain time, and then refer to it, would be giving it a double significance, of which it is not susceptible."
The only reasonable construction of the word "then" in the 3d clause of the will, is that it had reference to the words "dying without issue living at the time of the death of such person," thus precluding the idea that it had reference to dying without issue in the lifetime of the life tenant.
The leading case upon which the respondent's reply, isVidal v. Verdier, Speer's Eq. 402, in which the devise was as follows: "I give, devise and bequeath unto my beloved wife, Sarah Bennett, the use of all and singular my estate, both real and personal, whatsoever and wheresoever, during her natural life, and after the death of my beloved wife, Sarah Bennett, I leave to my nephew, James Felix Vidal, the whole of my estate, both real and personal; but in case of the death of my nephew, James Felix Vidal, without his leaving a lawfully begotten child, or children, then and in that case, the whole, both real and personal, be divided among the rest of my nephews and nieces, share and share alike. And be it further understood, that in case of the death of my nephew, James Felix Vidal, leaving a lawfully begotten child, or children, then and in that case, the whole property, both real and personal, shall be divided between them, share and share alike." * * *
The last sentence thereof, is what specially distinguishes that case from the one now under consideration. *Page 285
The case of Vidal v. Verdier, Speer's Eq. 402, was thus explained by Chancellor Harper (who wrote the opinion in that case), in Yates v. Mitchell, 1 Rich. Eq. 265:
"That case was decided on this principle — that when a testator, giving in remainder after an estate for life, uses one set of expressions, denoting that the remainderman is to take an absolute estate — and another set of expressions limiting him to an estate for life, with remainder to his issue, and a limitation over in the event of not having issue; this apparent repugnancy may be reconciled, by restricting the dying without issue, to the lifetime of the tenant for life, thus permitting every part of the will to have its proper effect. If he dies during the lifetime of the tenant for life, leaving issue, the issue will take as purchasers under the will — if without issue, the limitation over will have effect; but if he survives the tenant for life, the estate is absolute. Such is, in every case, a reasonable and probable intention; and in that case, there were circumstances, to satisfy me very fully, that such was the actual intention."
He then proceeds as follows, to show the difference in the case then under consideration, and that of Vidal v.Verdier, Speer's Eq. 402:
"But this has nothing to do with the case before us — though in another and peculiar sense, different from that in which the words are used in Vidal v. Verdier, the devisee, in one event, is said to be restricted by the terms of the will to a life estate. It enters into the very definition of an executory devise, that a fee simple or absolute estate may be given, with a provision that it shall determine and go over on a future contingency — most commonly, the contingency of dying without leaving issue; and this is what is very clear in the present instance. The testator devises to his children `their heirs, executors, administrators and assigns forever.' He gives an absolute estate, and an absolute estate only — though, to be sure, it may be said that in one event it turns out to be no more than a life estate. *Page 286 In a sense still somewhat different, every man may be said to have only a life estate in any of his property. In thepresent case, if the devisee had left issue, his estate wouldhave been absolute, so that he might dispose of it at hispleasure, to his issue or any one else. In Vidal v. Verdier,on any other construction than that which was adopted, hecould have had an absolute estate in no event whatever." (Italics added.)
In Marshall v. Marshall, 42 S.C. 436, 20 S.E. 298, the Court had under consideration the will of John Marshall, which contained these clauses:
3d. "I leave to my beloved wife her lifetime, the plantation whereon I now reside." 6th. "I give to my beloved sons, Wm. K. and John W. Marshall, at the death of my wife, the residue of my land, being the plantation whereon I now live, commencing at the Hickory corner mentioned in Robert's track to extent of my land boundary west of the Potter road, the same to be equally divided between them, giving John the side next to W.W. Bell's, with these considerations, that each one pay to me or my executors the sum of sixteen dollars yearly, commencing on the first of January, 1849, for the support of myself and wife during my lifetime, and the lifetime of my wife, should she outlive me, they refusing to comply with said terms, forfeit so much out of the said lands so given them, and by their compliance, I give said parcels of land to them and their heirs forever." 11th. "Should my son, John W. Marshall, die, leaving no children to inherit the land left him by me at his death, it is my desire, and I leave it as my will, that the parcel of land so left him by me, be sold and the proceeds be equally divided between my son, Samuel, and my three daughters, Mary, Susan and Sarah, or their heirs."
Chief Justice McIver, who delivered the opinion of the Court, thus states the question then under discussion:
"The practical inquiry is, whether the testator intended by the words which he has used in the eleventh clause of *Page 287 the will, that the fee previously given to John W. Marshall by the sixth clause of the will, should be defeated by his death without children, during the lifetime of the widow, or by his death without children, at any time when that event should occur; for both parties concede, and the Circuit Judge so holds, that John took a fee defeasible upon the happening of one or the other of said contingencies."
He then proceeds as follows to comment on the cases ofVidal v. Verdier, 1 Speer's Eq. 402, and Yates v. Mitchell, 1 Rich. Eq. 265.
"In Yates v. Mitchell, 1 Rich. Eq. 265, the testator gave one moiety of the annual income of his estate to his wife for life, and the other moiety to his children during the life of his wife, and then provided that after the death of his wife, his estate should go to his children in fee (and should any of my said children die without leaving lawfully begotten issue, living at the time of his, her, or their death, then the share or shares in my estate of such child or children, so dying as aforesaid, shall go to the survivor or survivors of my said children, and to the issue of such of my said children, as may have previously died). It was contended that upon the death of the widow, the estate of a child who survived her became absolute, and the case ofVidal v. Verdier, supra, was relied upon to support that view, but the Court held that that case did not apply, and upon the death of any of the children, at any time, without issue, the share of the child so dying would go over to the survivors. It seems to us that Yates v. Mitchell is much more like the present case than Vidal v. Verdier."
After quoting the language of Chancellor Harper inYates v. Mitchell, 1 Rich. Eq. 265, explanatory of Vidal v.Verdier, Speer's Eq. 402, he then says:
"It is very obvious that the case of Vidal v. Verdier, thus explained, cannot control the present case. For here there are two sets of expressions — one denoting that John W. Marshall was to take an absolute estate, and the other limiting *Page 288 him to an estate for life, with remainder to his issue, and a limitation over upon failure of issue. On the contrary, it is clear that John W. Marshall, by the sixth clause, took an estate in fee simple, after which there could be no remainder to his issue; but by the operation of the eleventh clause, such fee became defeasible upon his death without children, whenever that event might happen. Carson v.Kennerly, 8 Rich. Eq. 259; Thomson v. Peake, 38 S.C. 440. The case of Blum v. Evans, 10 S.C. 56, resting mainly, if not entirely, upon Vidal v. Verdier, need not be considered."
In the case of Mangum v. Piester, 16 S.C. Chief Justice Simpson, who delivered the opinion of the Court, used the following words, after quoting the explanatory language of Chancellor Harper in Yates v. Mitchell, 1 Rich. Eq. 265, in regard to the doctrine announced in Vidal v. Verdier, Speer's Eq. 402: "But he said further, that this had nothing to do with the case he was then discussing, because in that case there was not a double set of expressions indicating different estates conveyed as in Vidal v. Verdier."
These authorities clearly establish the doctrine, that unless there are two sets of expressions, one denoting that the remainderman is to take an absolute estate, and another set of expressions limiting him to an estate for life withremainder to his issue, and a limitation over in the event of his not having issue, the rule announced in Vidal v. Verdier, Speer's Eq. 402, can not be successfully invoked, as it was only intended to be applied when there was a necessity to reconcile the apparent repugnancy, by restricting the dying without issue, to the lifetime of the tenant for life, and thereby permitting every part of the will to have its proper effect.
In the case of Vidal v. Verdier, Speer's Eq. 402, James Felix Vidal was given an absolute estate after the death of the life tenant. It was subsequently provided that if he died without leaving a lawfully begotten child or children, then and in that case, the whole property, both real and *Page 289 personal, be divided among the rest of his nephews and nieces, share and share alike. So far no valid objection could be urged to the provisions of the will, as it is not aninconsistency, but only an instance of that which commonly arises, when an executory devise or a contingent or substitutional limitation is created.
A different principle, however, prevails when there is a repugnancy between those provisions giving a fee in the first instance, and those subsequent provisions which destroy it, or cut it down to a life estate. The will subsequently provided that in case of the death of James Felix Vidal, leaving a lawfully begotten child or children, then and in that case, the whole property, both real and personal, was to be divided between them share and share alike. It will thus be seen, that if he died without issue, the property was to go to others, and that if he died leaving a child or children, the property was to go to them. Therefore it was certain that he could not, in either event, enjoy more than a life estate. It was with a view of reconciling this repugnancy that the Court in that case, restricted the dying without issue to the lifetime of the tenant for life.
In the case of Marshall v. Marshall, 42 S.C. 436,20 S.E. 298, the will did not provide that the property should go to the issue of John W. Marshall, and this is the distinguishing feature between that case and Vidal v. Verdier. The case under consideration comes within the doctrine announced in Marshall v. Marshall, supra.
We proceed, lastly, to consider the case of Blum v. Evans,10 S.C. 56, in which the provisions of the will were as follows:
"I give to my beloved wife my entire estate, real and personal, during her lifetime, under the control and management of John Horlbeck and G.W. Dingle, as trustees, substitutions to be made by the Court and approved of by the parties interested. *Page 290
"I wish my wife to enjoy this estate during her life; at her death to go to my daughter, Emma Julia. Should my daughter die without issue, I wish my entire estate to be divided equally among the Horlbecks (my wife's family) and the Blums (my family), one-half to the Horlbecks, one-half to the Blums."
It will thus be seen, that the facts were similar to those inMarshall v. Marshall, 42 S.C. 436, 20 S.E. 298, and not to those in Vidal v. Verdier, Speer's Eq. 402, in this important particular, to wit: That if the testator's daughter, Emma Julia, to whom he gave an absolute estate in the first instance, had issue living at the time of her death, the propertywas not to go to such issue. There were no express words conferring such right upon the issue, nor was that a case, in which they could take by implication. Shaw v.Erwin, 41 S.C. 209.
The doctrine announced in Vidal v. Verdier, was therefore incorrectly applied in Blum v. Evans.
While, as already stated, the facts in the last mentioned case were similar to those in Marshall v. Marshall, and entitled the parties to similar relief, the conclusions were different. We must, therefore, regard the case of Blum v.Evans as practically overruled by Marshall v. Marshall, which was a later case.
Judgment reversed.
MESSRS. JUSTICES HYDRICK and WATTS concur.