The opinion of the court was delivered by
Mr. Chiee Justice McIver.This was an action for partition of a house and lot in Columbia, and the only question really contested which is presented by this appeal, is as to the proportions in which the several parties are entitled to share in the common property. That question depends entirely upon the construction of the will of Mary Purvis, the mother of the two appellants and the grandmother of the two respondents. The will is set out in full in the “Case,” and that portion of it which is material reads as follows: “I give, devise, and bequeath to James D. Tradewell all my estate, real and personal whatsoever, * * * nevertheless for the following purposes and upon the following trusts: That is to say, for the purpose of_the support and maintenance from the income thereof of my two daughters, Haynes Purvis and Charlotte Purvis, which income shall be expended for their joint benefit; and upon the trust that the said James D. Tradewell shall hold the said house and lot under this my will and testament, as to the legal title, for the benefit of my said two daughters exclusively, without the same being in any way subject to the debts or contracts of any man or men with whom they, my said daughters, or either of them, may hereafter intermarry. To carry this will into effect fully as I intend, I hereby empower the said James D. Tradewell, by and with the authority and direction of the Court of Equity, to sell and reinvest the proceeds, the said house and lot, in any way that may be ordered by the said court, .so that the object of this my last will and testament may be properly fulfilled.”
*59The Circuit Judge construed the will as conferring an estate in fee simple upon the trustee for the exclusive benefit of the two daughters, whose trust estate was commensurate with that of the trustee, and that upon the death of each of these two daughters her share descended to and vested in her heirs at law. The appeal questions the correctness of this construction, and, on the contrary, claims that under a proper construction of the will, the testatrix made no disposition of the property after the death of her two daughters, which event has occurred, and that thereupon the pi’operty became distributable amongst those who were the heirs of testatrix at the time of her death. There is also a third ground of appeal, as to a matter wholly unaffected by the construction of the will, which will be hereinafter more fully stated.
1 Our first inquiry, then, is whether the Circuit Judge erred in his construction of the will. When the testatrix devised and bequeathed to the trustee “all my estate, real and personal whatsoever,” she thereby expressed her intention to dispose of her entire property and of all the interest or estate she had therein. Canedy v. Jones, 19 S. C., 297; Blount v. Walker, 31 Id., 13. And the fact that there are no words of inheritance used in the devise to the trustee cannot affect the question, for since the act of 1824, now incorporated in the General Statutes as section 1861, such words are not only unnecessary to convey an estate in fee simple by devise, but the statute expressly declares that “every gift of land by devise shall bo considered as a gift in fee simple, unless such a construction be inconsistent with the will of the testator expressed or implied,” and as-there is nothing in this will inconsistent-with an intention to invest the trustee with the fee, it follows necessarily that the will should be construed as conveying the fee to the trustee. If the testatrix, in declaring the trusts upon which her property was given to the trustee, had stopped at the words, “for the support and maintenance, from the income thereof, of my two daughters, Haynes Purvis and Charlotte Purvis, which income shall be expended for their joint benefit,” then there might have been room for the construction that the intention was to make provision only for a life interest in the two daughters. But the testatrix did not stop at the words just quoted, and, on the contrary, *60added these words, “and upon the trust that the said James I). Tradewell shall hold the said house and lot under this my will and testament, as to the legal title, for the benefit of my said two daughters exclusively, without the same being in any way subject to the debts or contracts of ar.y man or men with whom they, my said daughters, or either of them, may hereafter intermarry.” This, in our judgment, was in effect the same as if the testatrix had said that the trustee should hold the legal title of the property conferred upon him by the will, which, as we have seen, was a title in fee for the benefit of the two daughters. We concur, therefore, with his honor, Judge Hudson, in the construction which he placed upon the will.
2 It appears, however, that during the life-time of the two daughters, they, with their trustee, Tradewell, entered into a written agreement with the plaintiff (a copy of which is set out in the “Case” as exhibit B), for the lease of the premises in question to the plaintiff, he paying a certain stipulated ground rent; and that such agreement contained a covenant that the plaintiff should be entitled, at the termination of the lease, to remove the improvements which he might place upon the leased premises. The master, to whom all the issues in the action were referred, found amongst other things, “That the said plaintiff, or his assignee, is entitled to remove the improvements so erected by him from the leased lot, upon the terms and conditions set forth in said lease (exhibit B), paying, of course, whatever ground rent may be due, which should be divided as the other rent is.” To this finding of the master, as well as others, respondents excepted, and the Circuit Judge having sustained all of the exceptions to the master’s report, the appellants, by their third ground of appeal, impute error to so much of the judgment below' as sustains respondents’ sixth exception to the master’s report, finding, as above stated, that the plaintiff or his assignee is entitled to remove the improvements erected by him upon the leased premises. It is very obvious that this point was not brought to the attention of the Circuit Judge, or it was overlooked by him, as he says nothing about it in his decree; and, on the contrary, after considering and determining the question, as to the proper construction of the will, he says, “No other question was argued *61before me” — probably for the reason that it was too plain for argument. For as the right to remove the improvements was clearly guaranteed to plaintiff by the express terms of exhibit B, and as we see nothing whatever in the “Case” tending to destroy or impair such right, there could be no question about it. It is clear, therefore, that this ground of appeal must be sustained, for the question was directly presented by the record, and therefore there was error in sustaining respondents’ sixth exception to the master’s report.
The judgment of this court is, that the judgment of the Circuit Court, in so far as it relates to the construction of the will, be affirmed; but in so far as it sustains respondents’ sixth exception to the master’s report, it be reversed.