August 8, 1924. The opinion of the Court was delivered by This is an appeal from a decree of his Honor, Judge Mauldin, which fully sets forth the object of the suit, and should be reported.
The exceptions raise two questions: First, under the terms of the will, can the word "issue" be construed to mean children, so as to vest a present title? Can the estate be distributed under the will prior to the falling in of the life estate?
If we hold under the terms of the will that the word "issue" means children, then the agreement between the respondent and appellant is good, and the Circuit decree should be affirmed. If we hold otherwise, the agreement is good and binding only between the parties who made it. Yet, if Margaret F. Mitchell should have children they will be remaindermen, and the agreement of parties would be defeated, if Margaret F. Mitchell had children and survived her mother, Margaret V. Mitchell.
In order to defeat the agreement in any view of the case, Margaret F. Mitchell must have children. I am decidedly of the opinion that, from the language of the will and the facts surrounding the testator at the time of the execution of his will, it does not clearly appear that the word "issue" is to be construed in its technical meaning, but think that his *Page 329 Honor properly construed the word "issue" to mean children. The testator was not thinking of his remote descendants as remaindermen, in preference to those who were then in esse. He provided for his mother, sister, and daughter, and if his daughter had a child or children living at the time of his daughter's death, the property went to her. He never had in mind contemplated the property to be tied up further than his grandchildren. His intent from the whole will was to give his property to his grandchildren, provided there were any living at the date of his daughter's death.
Under Selman v. Robertson, 46 S.C. 264;24 S.E., 187, quoted by his Honor in his decree, in a will of the testator the intention governs, regardless of any arbitrary rule of law. We agree further with the Circuit Judge in his quotation of Logan v. Cassidy, 71 S.C. 180;50 S.E., 794, where the word "issue," as used, meant "children"; the facts of this case and of Logan v. Cassidy, supra, being somewhat similar.
The testator occupied the position of parent towards his nieces and nephews; they were his adopted children; he had always looked after them and taken car of them; and it was clearly his intention when he made his will to look out and care for those who were near and dear to him — his mother, sister, daughter, and such child or children as his daughter might have, and his nieces and nephews. It was not his intention to look forward and take care of his great grandchildren, should he have any. He did not intend to tie up the property further than a grandchild. His clear intent by his will was to give the whole estate to his grandchild or children, absolutely, should there be any living at the time of his daughter's death.
Under conditions that exist now, this large estate practically produces no income. The past-due taxes are over $16,000, and growing larger each year. The life tenant is hard up all the time; no income and practically "starving, *Page 330 as it were, in a land of plenty." Large bodies of land produce no income; a valuable lot of property unimproved; the storehouses renting for practically nothing, for want of money to repair the same; tax executions issued and the progress of a live city impeded by reason of unimproved property lying within the same; no one capable of selling the real estate; the object of the testator defeated, when he thought, under his will, the objects of his bounty would be benefited.
Here we have his estate practically wrecked, unless we affirm the judgment of the Circuit Court. By doing so the debts can be paid and a considerable estate left for the beneficiaries under his will and the objects of his bounty. The judgment of the Circuit Court should be affirmed, as his conclusions of fact are in accordance with the testimony in the case; and upon the facts found, his conclusions of law are correct.
Under the decisions of this Court, from Bofil v. Fisher, 3 Rich. Eq., 1; 55 Am. Dec., 627, to the present time, the lands may be sold debts paid, but the interests of the parties vested and contingent are transferred to the fund. I think it better for all parties that the judgment of the Circuit Court should be confirmed and the settlement stand. F.M. Trimmer died in 1888 If the doctrine of Bofil v. Fisher had been carried out at the time of his death, or a few years after, I doubt that the property he died seized and possessed of, with accumulated interest thereon, would amount to the present value of his estate. From the date of his death to the present time, real estate situated as his has gone up in leaps and bounds. It is the history of all real estate in this State that it may fluctuate in value from year to year, yet at the end of each 10 years all of it has increased in value considerably. Trimmier has been dead nearly 36 years, and the difference in the value of his real estate at the time of his death and the present time is enormous. *Page 331
The application of Bofil v. Fisher to this estate at the time of his death would have been detrimental to his estate and would have worked a loss.
The agreement between the appellant and respondents is good and binding. All parties are bound by it, and should a majority of this Court hold that the word "issue" in the will does not mean children, but is to be construed in its technical sense, and that the great-grandchildren of F.M. Trimmer (if any) are the contingent remaindermen, under his will, and are to finally receive the estate, then enough should be sold to pay the debts and put each party in possession of the parts that they have agreed upon until the time comes, finally, when it shall be determined who gets the estate, or all the property sold, the debts paid, and the whole, after that time, reinvested, and from the proceeds of that sale, after being reinvested from the funds derived from the sale of that property, agreed upon in the partition agreement. The fund brought in from the part assigned the Mitchells that the income from that fund be paid to Margaret V. Mitchell and the fund brought in from the sale of the property to other respondents, the income derived therefrom be paid over to them according to their respective rights therein, until it be finally determined whether there are any contingent remaindermen. The agreement between the appellant and respondents is good, binding, and valid; and in any view of the case can only be defeated by Margaret F. Mitchell having children, and if majority of the Court decide that the word "issue," being a technical word, must have its technical meaning.
I think the exceptions should be overruled, and the judgment affirmed.
MESSRS. JUSTICES COTHRAN and MARION concur.
MR. JUSTICE FRASER dissents.
MR. CHIEF JUSTICE GARY did not participate. *Page 332