December 29, 1922. The opinion of the Court en banc was delivered by The provision of the will, out of which this action arose, is as follows:
"It is also my will and desire that all the property both real and which I have willed and bequeathed to said Julia Ann Long or which may accrue to her under said will and testament shall be and remain to her during her natural life and to descend to the heirs of her body, and if she the said Julia Ann Long should die without issue or children of her body the said property to return to my son, Moses Long." *Page 133
The following appears in the agreed statement of facts:
"The sole question to be determined in this case is whether or not, under the terms of the will of J.A.C. Long, deceased, herein attached, the said Mrs. Julia A. Folk (nee Long) had the right and power to convey by her deed of conveyance unto W.H. Folk and E.H. Folk, the grantees therein, a fee-simple title to the aforesaid tract of land; the plaintiffs' contention is that the said Julia A. Folk had only a life estate in said tract of land and had no right to convey anything more than a life estate therein; the defendants' contention is that the said Mrs. Julia A. Folk had the right and power to convey and did convey in and by said deed of conveyance a fee-simple title to said tract of land unto the said W.H. Folk and E.H. Folk, the grantees, in said deed."
It will thus be seen that, if the words "heirs of her body" must be construed, under the rule in Shelley's Case, as creating a fee conditional, then the judgment of the Circuit Court must necessarily be recovered. The only words in the will which are to be relied upon to show that the testator did not use the words "heirs of her body" in their ordinary acceptation as creating a fee conditional are the words "issue or children of her body." "Issue" is a word of limitation. Williams v. Gause, 83 S.C. 265,65 S.E., 241. On the other hand, "children of her body" are words of purchase, unless the entire will shows otherwise. The words "and if she the said Julia Ann Long should die without issue or children of her body, the said property to return to my son, Moses Long," are not to be construed as a part of the granting clause, except in so far as they may throw light upon the sense in which the words "heirs of her body" were used; as an estate cannot be created by implication. Shaw v. Erwin, 41 S.C. 209, 19 S.E., 499. If the words "issue" and "children of her body" are both words of limitation, then there is no inconsistency between them and the words "heirs of her body." If, on the other *Page 134 hand, the word "issue" and the words "children of her body" are both words of purchase, and refer to distinct clauses, then they are inconsistent with the words "heirs of her body," which refer to one class only, and this makes their import doubtful.
We here reproduce the following language of another member of this Court, as it brings out clearly the difference in our views:
"The real storm center of the controversy is, as to the effect of this superadded clause upon the question, whether the testator intended that the remainder after the life estate to the `heirs of her body' should constitute a gift to `a class of persons to take in succession from generation to generation' as the heirs of the body of the life tenant or as a gift to such heirs of the body of the life tenant as answered the description of the `issue or children of her body' at the time of her death, they taking not indefinite succession as heirs of the body of the life tenant, but directly under the will from the testator, as the stock of a new inheritance. * * * The intention of the testator is made manifest that Julia Ann should take only a life estate; he says so in the plainest terms; he then provides that at her death the estate should descend to the `heirs of her body'; in the very next clause he translates this expression into `issue or children of her body.' He evidently intended that upon the death of Julia Ann the estate should go to her children, and then, thinking that perhaps some of the children might die leaving children, he employed the word `issue' so as to include the grandchildren in that event. He then provides for the contingency of Julia Ann dying without children or issue by a devise over to his son, Moses. The controversy is over the power of this Court to carry that intention into effect. It can be done unless the rule in Shelley's Case forbids it."
This construction practically makes another will in every respect, creates two classes of remainders when one only *Page 135 was intended by the testator, gives validity to an executory devise that was void for remoteness, as the testator died prior to the act of 1853 (now Section 3551 of the Code of Laws 1912), and is different from the construction adopted by his Honor, the Circuit Judge. It is truly said that the construction we have mentioned could be carried into effect unless the rule in Shelley's Case forbids it. That is just the trouble. The rule in Shelley's Case does forbid it. The case of Cureton v. Little (S.C.), 111 S.E., 803, is conclusive of this controversy. In that case the property was devised "to my son, John M. Cureton, Jr., during his natural life, and afterwards to his bodily heirs." It was properly held that these words created a fee conditional. We quote as follows from that case:
"The following principles are well established in this state in the construction of wills: `When a gift is made in one clause of a will in clear and unequivocal terms, the quantity or quality of the estate given should not be cut down or qualified by words of doubtful import found in a subsequent clause. To have that effect, the subsequent words should be at least as clear in expressing that intention as the words in which the interest is given.' Walker v.Alverson, 87 S.C. 60, 68 S.E., 968, 30 L.R.A. (N.S.), 115. `Where an estate is given by will in words of clear and ascertained legal significance, it will not be enlarged, cut down, or destroyed by superadded words in the same or subsequent clauses, unless they raise an irresistible inference that such was the intent of the testator.' Adamsv. Verner, 102 S.C. 7, 86 S.E., 211. `Where an estate is devised by clear and unequivocal terms, superadded words of doubtful import must be rejected.' Adams v. Verner,102 S.C. 7, 86 S.E., 211."
If these express words describing a life estate were not sufficient to limit the estate of John M. Cureton, it is scarcely reasonable to suppose that the words herein are *Page 136 sufficient to limit the estate of Julia Ann Long, and confine it to a life estate.
There is another reason why the judgment should be reversed: There are no words in the will, whatever, showing when the children of Julia Ann (even conceding that they were intended to take) were to go into possession or their remainders become vested. Therefore the presumption is that those were to take who were in esse at the death of the testator; and, as none of the children were then living, none could take under the will. McFadden v. McFadden,107 S.C. 101, 91 S.E., 986; Avinger v. Avinger,116 S.C. 125, 107 S.E., 26; Holly v. Still, 91 S.C. 487,74 S.E., 1065. Another reason why the construction hereinbefore discussed cannot prevail is because it fixes the death of the life tenant, as the time when the remainders were to vest, and would exclude the son — W.H. Folk — who died before the life tenant; and there was no provision in the will for his children to take the share to which he would have been entitled. Under the construction that the death of the life tenant was the time fixed for the vesting of the remainders, they were contingent, and could not vest until that time. Faber v. Police, 10 S.C. 376.
There is still another reason why the judgment should be reversed: Whenever it is necessary to give the word "children" the meaning of the word "heirs" in order to give force and effect to all the provisions of the will, the Courts will so construe it. Robinson v. Harris, 73 S.C. 469,53 S.E., 755, 6 L.R.A. (N.S.), 330; Dillard v. Yarboro,77 S.C. 227, 57 S.E., 841; Holley v. Still, 91 S.C. 487,74 S.E., 1065.
In Dillard v. Yarboro, 77 S.C. 227, 57 S.E., 841, this Court uses the following language:
"As wills are construed with more liberality in carrying into effect the intention of the testator, than in cases involving the construction of deeds, there is a stronger reason *Page 137 for holding that the children named in the deed herein, did not take any interest as such. Under such circumstances the word `children' must be construed to mean `heirs of the body' by which an estate tail at common law, and a fee conditional in this state is created. In 3 Jarman on Wills, 174, it is said: `The rule of construction commonly referred to as the doctrine of Wild's Cases, is this, that where lands are devised to a person and his children, and he has no child at the time of the devise, the parent takes an estate tail; for it is said, the intent of the devisor is manifest and certain, that the children (or issues) should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his (the devisor's) intent, for the gift is immediate, therefore such words shall be taken as words of limitation.' `Heirs of the body' are words of limitation whereby the parties take by inheritance and not by purchase; therefore, the conveyance of the property by the defendant was as effectual to convey the fee, as if the deed had been to her and her heirs generally, whether she conveyed before or after the birth of issue."
Thus it will be seen that, even if the testator intended to use the words "heirs of her body," in the sense of "children," nevertheless, as Julia Ann had no children at the time of the testator's death, her life estate was by operation of law converted into a fee conditional.
There are several other reasons that could be assigned which show that the words "issue or children of her body" were inadvertently inserted, instead of the words "heirs of her body," but we do not deem it necessary to prolong this opinion. In conclusion we call attention to the fact that the rule in Shelley's Case is a rule of property; that it is more or less arbitrary in its nature; that it is frequently at variance with the intention of the testator; and that the practical effect of affirming the judgment of the Circuit *Page 138 Court would be to destroy the estate by fee conditional. This is not the first time that the said rule has been attacked.
In the case of Holley v. Still, 91 S.C. 487,74 S.E., 1065, permission was granted to review the case of Barksdalev. Gamage, 3 Rich. Eq., 271, which discusses the question now before us. In refusing to overrule that case this Court said:
"The doctrine announced in Barksdale v. Gamage has become a settled rule of property; it is arbitrary in its nature, like the rule in Shelley's Case; and we see no greater reason for changing one than the other."
Reversed.
MESSRS. BOWMAN, SEASE, MAULDIN and PEURIFOY, Circuit Judges, concur.