Opinion
12806
January 15, 1930.
Before GRIMBALL, J., Charleston, July, 1928. Reversed and remanded.
Action by Mary E. Manigault against Charlotte P. Bryan and others. Judgment for defendants, and plaintiff appeals.
The decree of Wm. H. Grimball, circuit Judge, directed to be reported, was as follows:
"This case comes before me on facts which are admitted and agreed to by the parties, and involves solely the question as to whether the plaintiff is the owner in fee simple of the lot of land described in the complaint, or whether she has only an estate therein for life, or during widowhood.
"The facts of the case are briefly as follows:
"Charles Manigault, late of the city of Charleston, died on January 14, 1908, seized and possessed in fee simple of a lot of land in the city of Charleston, described in the complaint, and known as No. 9 Gibbes Street, and leaving of force a will which was duly admitted to probate in the Probate Court of Charleston County on January 29, 1908. The will was as follows:
"`I give, devise and bequeath all my property of every kind and description unto my wife, Mary E. Manigualt, for and during the term of her natural life or widowhood, and from and after the death of my said wife or her widowhood, whichever event may first happen, I give, devise and bequeath all of my said property unto my children living at the death or marriage of my said wife, share and share alike, absolutely and forever; but if there be only one child living at the death or marriage of my said wife, then I give, devise and bequeath unto that one child all my said property, absolutely and forever.'
"The executor named in the will duly qualified, and the estate has been fully administered.
At the time of his death, the testator left surviving his widow, Mary E. Manigault, the plaintiff herein, and two children, Charles Manigault and Aimee Manigault. The daughter, Aimee Manigault, died intestate and unmarried on or about April 2, 1926, and the son, Charles Manigault, died intestate and unmarried July 18, 1927. The widow survives and is still unmarried.
"Prior to the commencement of this action, plaintiff, claiming to be the owner in fee simple of the lands referred to, entered into a written contract with the defendant, Charlotte P. Bryan, for the sale of this property for the sum of $7,000, payable in cash. The defendant declined to accept the title tendered, claiming that under the will of the testator the plaintiff has only a life estate therein, and that upon her death or remarriage the title to the premises will vest in the persons answering the description of heirs at law of the testator at the date of death or remarriage of plaintiff.
"This action was thereupon brought by plaintiff against the defendant, Charlotte P. Bryan, for specific performance, and the defendants, Josephine Jenkins, the sister of the testator, Hawkins K. Jenkins, her husband, and Emma M. Jenkins, who has intermarried with Rev. Mr. Gribbin and is now known as Emma M. Gribbin, Joseph E. Jenkins, Hawkins K. Jenkins, Jr., and Gabriel Manigault Jenkins, her children, all of whom are of full age, have been made parties defendant, as constituting all of the persons now in esse who could have any claim in or interest to the premises under the contention of the defendant Charlotte P. Bryan. Besides his wife and children, the testator left surviving him no brothers or parents, and only the one sister, Mrs. Josephine Jenkins, who with her husband and children are defendants as stated.
"The defendants, Josephine Jenkins et al. claim by their answer that plaintiff has only a life estate in the premises described in the complaint, and that they being all of the persons in esse answering the description of those who would answer the description of heirs at law of testator, as of the time of the death of the life tenant, constitute the persons entitled as remaindermen to the fee of the property. In addition to demanding a decree to this effect, they ask that the contract of sale be carried out by a deed being executed by the master, and that the proceeds of sale, after payment of the costs and expenses of these proceedings, be paid over to a trustee to be appointed by the Court in trust to invest the same and pay over the annual income to the plaintiff for life, and after her death to pay such funds over to such one or more of these defendants as may at that time answer the description of heirs at law of the testator, freed from all further trust.
"The plaintiff claims that under the facts as stated and found his children took a contingent remainder under the will of testator, they having predeceased testator's wife, without her having remarried prior to the death of the children, the testator died intestate as to the fee; and that the fee vested at the death of the testator in his wife and two children and that by reason of the death of the two children intestate and unmarried, she is the absolute owner of the property in fee simple.
"The defendants claim that the construction contended for by plaintiff defeats the plain intention of the will of testator, and that, in order to give effect to the will, the Court must hold that the plaintiff has only the estate given her by the will, and that at her death or remarriage the property will go to such person or persons as may then answer to the description of the heirs at law of testator, and that under this construction Mrs. Jenkins or such of her family as may be living at the death of Mrs. Manigualt will be the persons entitled to the remainder.
"The effect of the contention of plaintiff is to defeat the intention of testator, so far as it is expressed in the will, as it vests the whole estate in her absolutely in fee, even though she should marry. The contention of the defendants preserves the intention of testator, so far as is expressed in the will, and gives the property, upon her death or remarriage, to his blood kin.
"There is no doubt that the ordinary rule is that, where a person leaves a will whereby he devises his property for life, but fails to dispose of the remainder, such remainder will vest in testator's heirs, as of the time of his death. McFadden v. McFadden, 107 S.C. 101, 91 S.E., 986; Lawrence v. Burnett, 109 S.C. 416, 96 S.E., 144; Busby v. Busby, 142 S.C. 395, 140 S.E., 801; Boyce v. Mosely, 102 S.C. 361, 86 S.E., 771.
"The question presented here, however, is not so simple; for, if the foregoing rule is applied, the declared intention of the testator is defeated, and the disposition he undertook to make of his property becomes utterly nugatory. Is the Court bound by the ordinary rule governing intestacy in a case such as this?
"The fundamental rule in all cases of construing wills is that the intention of the testator as disclosed by the will must be carried out if not in conflict with the law of the land.
"`The object of all construction is to ascertain the intention of the testator; and when that is ascertained, it must be carried into effect, provided this can be done consistently with the settled rules of law.' Roundtree v. Roundtree, 26 S.C. 450, 2 S.E., 474, 478; First National Bank v. Hutson, 142 S.C. 239, 140 S.E., 596.
"`When the testator's intention can be discovered it must necessarily be carried out, unless it is inconsistent with the law of the land. In looking for this intention we must be guided by the words which the testator has used, reading them in the light of established principles of law.' Faber v. Police, 10 S.C. 376, 386.
"`The paramount importance of the intention of the testator, which must necessarily override every other rule and be the governing principle, otherwise the Court instead of the testator would make the will.' Id.
"In the present case the testator has by plain implication indicated that his intention was that his wife should only take an estate in his property during her life or in her widowhood. If it were a settled rule of law that a testator could not postpone the determination of who his heirs at law might be until the death of a life tenant, the Court would of course be bound to observe this rule. Such, however, is not the law. On the contrary, it has been invariably held, where testator disclosed that only those of his heirs should take as answered to this description at the termination of an intervening life estate, that such disposition was valid. Evans v. Godbold, 6 Rich. Eq. 26; Blount v. Walker, 31 S.C. 13, 9 S.E., 804; Gourdin v. Shrewsbury, 11 S.C. 1; Barber v. Crawford, 85 S.C. 54, 67 S.E., 7.
"The case has been very fully argued by counsel, and the Court has reached the opinion that the limitation of the remainder in this case is by plain indication the date of the death of the life tenant; otherwise the whole purpose and theory of testator's will is destroyed. No rule of law has been shown which is inconsistent with this conclusion, and the Court therefore so holds.
"This conclusion disposes of the application of plaintiff for specific performance of the contract of the defendant, Charlotte P. Bryan, which must be denied. Plaintiff, however, has brought into Court all parties who could take under the objection to the title made by the proposed purchaser, and these parties are asking that the property be sold under the terms of the contract. The defendant, Charlotte P. Bryan, is prepared to pay the purchase money and comply with the terms of sale if she can obtain a proper deed to the property.
"Inasmuch as all parties concerned are before the Court and have been served and are of age, and as the sale of the lands at the price named in the contract set out in the complaint is acceptable to all parties, the Court is of opinion the property should be sold by the master and the proceeds disposed of as prayed for by the Jenkins defendants in their answer.
"It has been brought to the attention of the Court that the parties hereto have agreed that a counsel fee of $500, to be equally divided between the attorneys for the parties, should be allowed out of the proceeds of sale as a part of the expenses of the suit. The amount of this fee is reasonable, and it is so ordered.
"It is therefore ordered, adjudged, and decreed that the plaintiff, Mary E. Manigault, has only an estate for life or widowhood in the premises described in the complaint, and that upon the death or remarriage of said plaintiff the title to the said premises will vest in such person or persons among the defendants Josephine Jenkins, Hawkins K. Jenkins, Emma M. Jenkins (now Emma M. Gribbin), Joseph E. Jenkins, Hawkins K. Jenkins, Jr., and Gabriel Manigault Jenkins.
"It is further ordered, adjudged, and decreed that the master do convey to the defendant Charlotte P. Bryan the premises described herein upon her payment to him of the purchase price for said premises, and upon her performance of the terms of her contract for the purchase of said land.
"It is further ordered, adjudged, and decreed that the proceeds of said sale, after the payment of costs and expenses of these proceedings, including a counsel fee of $500, to be divided equally between plaintiff's attorney, the attorneys for the Jenkin, defendants, and the attorney for the defendant Charlotte P. Bryan, be paid over to a trustee to be appointed by the Court in trust to invest the same and pay over the annual income therefrom to the said plaintiff, Mary E. Manigault, for life, and, after her death, to pay such fund over to such one or more of the defendants Josephine Jenkins, Hawkins K. Jenkins, Emma M. Jenkins (now Emma M. Gribbin), Joseph E. Jenkins, Hawkins K. Jenkins, Jr., and Gabriel Manigault Jenkins, as may at that time answer to the description of the heirs at law of the testator, Charles Manigault, in accordance with the statute for the distribution of intestate estate, freed and discharged from all further trusts."
Mr. J.N. Nathans, for appellant, cites: Contingent remainder: 116 S.C. 129; 104 S.C. 425; 10 S.C. 376; 1 Strob. Eq., 43; 20 S.C. Eq., 115; 109 S.C. 416; 140 S.E., 801; 31 S.C. 29; 6 Rich. Eq., 26; 11 S.C. 1; 85 S.C. 54.
Mr. Nath. B. Barnwell, for respondents, cites: Intention of testator governs in construction of will: 26 S.C. 450; 89 S.E., 405; 85 S.E., 54; 107 S.E., 26; 140 S.E., 801; 105 S.E., 275; 111 S.E., 793; 137 S.E., 727; 140 S.E., 596; 10 S.C. 377; 142 S.C. 239; 26 S.C. 450; 78 S.C. 317; 3 DeS., 186; As to contingent remainder: 104 S.C. 95; 25 S.C. 358; 2 McM. Eq., 440; 3 DeS., 186; 40 Cyc., 1677; 102 S.E., 643; 2 Black Com., 107; 4 Kent Com., 259; 78 Ky. 419; 6 Rich. Eq., 26; 11 Bush., 646; 22 Pick., 563; 69 S.C. 292.
January 15, 1930.
The opinion of the Court was delivered by
This is primarily an action for the specific performance of a contract entered into between the plaintiff, Mary E. Manigault, and the defendant, Charlotte P. Bryan, for the sale and purchase of a certain house and lot in the city of Charleston known as No. 9 Gibbes Street, at the agreed price of $7,000.
Both parties are anxious to consummate the agreement, but the defendant Charlotte P. Bryan, the proposed purchaser, has raised a question in reference to the ability of Mrs. Manigault to convey to her an unquestionable fee-simple title; she really voices the contention of the other defendants in the case, as will be explained.
The case was submitted to his Honor, Judge Grimball, upon the uncontroverted facts hereinafter detailed. On July 25, 1928, he filed a decree sustaining the contention of the defendants, and from that decree the plaintiff, Mrs. Manigault, has appealed upon exceptions which fairly present the questions hereinafter discussed.
Charles Manigault died on January 14, 1908, seized and possessed of the premises referred to, in fee simple. He left a widow, the plaintiff, and two children, Aimee and Charles; both of them have since died intestate and unmarried; the widow has not remarried.
His will, dated in 1904, provides: "I will give, devise and bequeath all my property of every kind and description unto my wife, Mary E. Manigault, for and during the term of her natural life or widowhood, and from and after the death of my said wife or her widowhood, whichever event may first happen, I give, devise and bequeath all of my said property unto my children living at the death or marriage of my said wife, share and share alike, absolutely and forever; but if there should be only one child living at the death or marriage of my said wife, then I give, devise and bequeath unto that one child all of my said property, absolutely and forever."
The defendant Josephine Jenkins is a sister of Charles Manigault; the defendant Hawkins K. Jenkins is her husband; and the other defendants Emma. M. Jenkins, Josephine E. Jenkins, Hawkins K. Jenkins, Jr., and Gabriel M. Jenkins are their children — all in esse and sui juris. They are made parties defendant as the only persons, with the plaintiff, now living, who might possibly be the heirs at law of Charles Manigault, upon the determination of the widow's life estate. All are willing that the sale be consummated at once, and the rights of the parties in reference to the proceeds of the sale adjudicated. The widow claims the whole, and so do the defendants other than the proposed purchaser.
We think that there can be no doubt that the following deductions are legitimate from the terms of the will:
(1) That it vested a life estate in the plaintiff, Mary E. Manigault, the wife of the testator; no one controverts this proposition.
(2) That it vested a contingent remainder in fee in each child to an undivided half interest in the property, contingent upon his or her surviving the mother; both sides present this contention, and it appears manifestly true.
(3) That it vested a contingent remainder in fee in each child as to a half interest of the other contingent upon his or her surviving both the mother and the other child; both sides agree to this proposition, which we think manifestly true.
(4) That it makes no disposition of the estate in the event that has occurred, the deaths of both children during the lifetime of the life tenant; this also is conceded.
Both of the contingent remaindermen having died childless, unmarried, and intestate, after the death of the testator, and during the lifetime of the life tenant, and the fee not having been disposed of by the will upon this contingency, it has become intestate property of the testator, and the vexing problem is presented, Who are now or will be entitled to the proceeds of the sale of that fee? That is to say, at what period shall the heirs at law of the testator be determined, as distributees? The plaintiff contends that it is the death of the testator; the defendants, the death of the life tenant.
It is in vain to indulge in conjecture as to the intention of the testator under the circumstances, for the reason that there is nothing in the will to indicate that he ever anticipated the situation that the changes of time and the uncertainty of life have presented. It is fundamental that in the construction of an instrument the intention, as gathered from its terms, is always given a very controlling influence; but it appears impossible to attribute to the maker an intention with reference to a situation that he did not anticipate. It is but speaking to the common experience and observation, that, with the greatest of care bestowed in an effort to provide for every possible contingency, the very contingency not provided for, not contemplated, is the very one that has occurred. There can of course be nothing gained from a discussion of not only the uncertain but the impossible theory of the maker's intention under such circumstances.
Upon the question of intention, the Court said, in Bond v. Moore, 236 Ill., 576, 86 N.E., 386, 391, 19 L.R.A. (N.S.), 540: "It may be said that it will be presumed that the testatrix intended to dispose of her entire estate, and that the will should be so construed, unless this presumption is rebutted by its provisions. It is true that any reasonable construction of a will, consistent with its terms, will be adopted so as to give it effect to dispose of all the testator's property, and not to leave a part intestate, but this rule cannot be carried to the extent of inserting provisions in the will which the testator failed to insert. Clear words are necessary to disinherit an heir; and even where the intention is clearly manifested, the heir will take, unless the testator devises the property to some one else. Parsons v. Millar, 189 Ill., 107, 59 N.E., 606; Lawrence v. Smith, 163 Ill. 149, 45 N.E., 259. The Court cannot presume a will for a testatrix on mere speculation as to what might have been her intention. It is the intention of the testatrix only so far as she has communicated that intention by her will which is to govern the descent of her estate. The omission to make any gift, in the one case, may have been the intention of the testator as fully as the gift over in the alternative."
If it could be permitted to launch upon this uncharted sea, the theory that, as the testator gave the widow a life estate, he did not intend that she should receive more than that, is met by the theory that as he was providing for his own family, those who were nearest to him in blood and association, he did not intend that his collateral kin should participate in his estate.
The suggestion is answered by the decree of his Honor, the late Judge Moore, in the case of Clardy v. Clardy, 122 S.C. 451, 115 S.E., 603, 604, which was adopted by the Court in this particular: "It is contended on behalf of plaintiffs that there is an inconsistency between an intention to provide a life estate for Mary Francis, and a further intention that she should take as a remainderman in fee. The Court cannot see the inconsistency, and the South Carolina cases are otherwise, as shown above. In the case of Glover v. Adams, above, (11 Rich. Eq., 264); the Court said: `It has been conceived that to allow the husband to take as heir would defeat the intention of the parties to the deed. The intention of parties is not so much to be conjectured as derived, by construction, from their words. In this case, it has been argued that it was not intended to provide for the husband under the description of heir, because he was provided for under another designation. But it will hardly do to blot out one express provision, because there is another express provision. It seems to be going too far to make the husband's exclusion or inclusion depend upon the fact that provision has been made for him, unless we can be certified that that provision was intended to exclude all further provision; and how can we know that, in the case of express words, that do include him?'"
The contention of the plaintiff is that the interests of the children were nontransmissible contingent remainders; that the fee therefor never passed out of the testator or his estate; that it vested at his death in those who were his heirs at law, herself and the two children who were then alive; that, upon the subsequent death of Aimee, her interest passed to her brother, Charles, and the plaintiff; that upon the death of Charles his interest passed to the plaintiff, giving her the whole. If this contention be sustained, it of course makes an end of the claim of the defendants, other than the proposed purchaser to the entire estate upon the death of the tenant.
His Honor in his decree held as follows: "There is no doubt that the ordinary rule is that where a person leaves a will whereby he devises his property for life, but fails to dispose of the remainder, such remainder will vest in testator's heirs at the time of his death" — citing McFadden v. McFadden, 107 S.C. 101, 91 S.E., 986; Lawrence v. Burnett, 109 S.C. 416, 96 S.E., 144; Busby v. Busby, 142 S.C. 395, 140 S.E., 801; Boyce v. Mosely, 102 S.C. 361, 86 S.E., 771.
This is the general rule, and prevails always except in cases wherein the fee has passed out of the testator; so that presents the first question to be decided.
All depends upon the incidents of the contingent remainders devised to the children; that is to say, are they such interests as are inconsistent with the idea that the fees never passed from the testator.
In 23 R.C.L., 507, it is said: "The right of a contingent remainderman is more than a naked possibility, like that of an heir apparent. But a contingent remainder does not arise to the dignity of an estate in the land and confers no interest in the seisin. While it may be an interest in the estate, though a contingent one, strictly speaking, it is not an estate at all, but a mere chance of having one if the contingency turns out favorably to the remaindermen." 21 C.J., 984.
In Roundtree v. Roundtree, 26 S.C. 450, 2 S.E., 474, 482, the Court, in an exceedingly elaborate and clear opinion by Chief Justice McIver, declares that, while certain contingent remainders are transmissible to the heirs of the remaindermen, those of the class here presented are not."`It is sufficient for our present purpose to say that, where the existence of the remainderman himself, at the time of the event upon which the remainder is to take effect, does not constitute the contingency, then the remainder is transmissible. A testator may make it one of the conditions of the limitation that the remainderman shall survive the first taker; but where he fails to do this, and places the remainder upon some other event or contingency, wholly disconnected from the survivorship of the remainderman, the fact of his non-survivorship will not defeat the remainder for the obvious reason that the testator has not so declared and directed;' citing McMeekin v. Brummet, 2 Hill Eq. 642; Pritchett v. Cannon, 10 Rich., Eq. 394; and Fearne, Rem., 559, 560. Now in the case under consideration the testator has, as we have seen, made it one of the conditions of the limitation that the remainderman shall survive the first taker,' and therefore the remainders are not only contingent, but they are of such a class of contingent remainders as are not transmissible."
In Kale's Estates, 342, it is said: "To the general rule `that a contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person chance to die before the contingency happens,' Fearne adds only the practical exception of the case 'where the existence of the devisee, etc., of the contingent interest, at some particular time, may by implication enter and make part of the contingency itself, upon which such interest is intended to take effect.' By way of illustration he puts a case where the husband's remainder in fee was contingent upon his surviving his wife, the life tenant, and where he, having died first, the contingency never arose and so his heirs took nothing. There is, therefore, nothing artificial about this exception. The rule and the exception amount only to this: That all contingent remainders descend unless the death of him who is to take upon the happening of the contingency, is such an event as forever makes it impossible for his interest to vest."
The rule is thus stated in the case of Kean's Lessee v. Hoffecker, 2 Har. (Del.), 103, 29 Am. Dec., 336: "Contingent as well as vested interests in either real or personal estate, and also executory devises, and all possibilities coupled with an interest, where the person to take is certain, may be assigned or devised, and are transmissible to the representatives of the devisee, if he dies before the contingency happens: and when the contingency does happen, they vest in the representative of the real or personal estate as the case may be. It is otherwise, if the object of the limitation over is not ascertained or fixed; or the persons to whom the estate is to pass are not ascertainable until the contingency does happen; as in the case of a limitation to the right heirs of a person living; for during the life of such person, it cannot be known who his heirs will be, nor in whom the interest is. These principles will be found fully established by the following authorities: 4 Burns' Ecc. Law, 139; 2 Wilson 29; 3 Term, 93-4; 1 Vezey, 47, 237; 2 Saund. 388, note h; 1 Hy. Blac., 30; Talbot, 117; Willes, 211; 1 P. Wms., 564; 1 Fearne on Remr., 534, 536, 540; 2 Fearne, 530. et seq.; 4 Kent's Com., 284, 510."
In Walker v. Alverson, 87 S.C. 55, 68 S.E., 966, 967, 30 L.R.A. (N.S.), 115, the Court said: "If the limitation to her was a contingent remainder, the purchaser at the sheriff's sale took nothing, and she is entitled to recover. But, if her interest was a vested remainder, it was conveyed by the sheriff's deed, and the defendant is entitled to retain the possession."
If the contingent remainders then were not transmissible, could not be aliened, and could not be levied upon under execution, the remaindermen had nothing more than an expectancy which would ripen into a fee if they complied with the condition imposed; an interest which was entirely compatible with the nonpassing of the fee.
The following authorities clearly show that, in the case of a non-transmissible, non-assignable, non-leviable contingent remainder, the fee remains in the testator or his heirs until the happening of the condition upon which the remainder takes effect in possession:
In 21 C.J., 993, it is said: "The logical and more reasonable theory, however, is that in such a case the inheritance remains in the grantor or his heirs or in the heirs of the testator, until the contingency happens to take it out of them."
In Belding v. Parsons, 258 Ill., 422, 101 N.E., 570, 571, it is said: "Until the vesting of a contingent remainder or the determination of the impossibility of its vesting, the reversion in fee is in the heirs of the testator. Bond v. Moore, 236 Ill., 576, 86 N.E., 386, 19 L.R.A. (N.S.), 540; Harrison v. Wettherby, 180 Ill., 418, 54 N.E., 237; Peterson v. Jackson, 196 Ill., 40, 63 N.E., 643."
In 3 Thomp. Real Pr. § 2162, it is said: "Where a deed conveyed a life estate, with a contingent remainder to others, the fee remained in the grantor, subject to be divested by the happening of the contingency upon which the title would vest in the remaindermen, and descended to the heirs of the grantor in case of his death before the happening of the contingency."
In Collins v. Sanitary District of Chicago, 270 Ill., 108, 110 N.E., 318, 320, the Court said: "That the remainders were contingent, and no title vested in the children of the grantees until the termination of the life estate is settled by repeated decisions. Belding v. Parsons, 258 Ill., 422, 101 N.E., 570; Barr v. Gardner, 259 Ill., 256, 102 N.E., 287; Hill v. Hill, 264 Ill., 219, 106 N.E., 262. The fee therefore remained in the grantor, subject to be divested by the happening of the contingency upon which the title would vest in the remaindermen, and descended to the heirs of the grantor at her death."
In the case of Rochell v. Tompkins, 1 Strob. Eq., 114, there was devised a life estate to the widow, and at her death it was to revert to the estate of the testator; no disposition of it in that event was made. The widow died without issue, and the question arose, considering the reversion as intestate property, whether the next of kin of the testator should take the property to the exclusion of the next of kin of the widow; the contention of the testator's kin being that, the widow having died before the reversion could occur, she had not inherited any part of it and could transmit none to her next of kin. The Court, however, did not sustain this contention, but held that, upon the death of the testator, the reversion which was certain to occur vested in those entitled to distribution, amongst whom the wife was most prominent. It was decided that the wife inherited one-half of the reversion, distributable among her next of kin and the other half among the testator's next of kin. The ground of decision in that case as in this was that the fee had never left the testator or his estate; that immediately upon his death it passed in part to the widow and never left her; her death was not necessary to its creation, and at the time of her death it remained in her, and naturally passed to her heirs at law.
In the case of Lawrence v. Burnett, 109 S.C. 416, 96 S.E., 144, it was held that, as Simeon Gowan took only a life estate under the will and deed (construed together), of his father, William Gowan, and as the remainder was undevised, except upon a condition which did not happen, the reversion to the grantor and testator, William Gowan, of the fee, was intestate property, and descended under the statute to the heirs of William at the time of his death, one of whom was Simeon, who thus inherited one-seventh of the land. As in the Rochell Case, the title to the reversion, which all the time existed, never left the testator, and as a matter of course vested at his death to the extent of one-seventh in Simeon, although all the while he held a life estate in the whole. Nothing that Simeon did or refrained from doing created or accelerated the reversion. If his death had done so, it seems clear that, being dead, he could not have inherited.
In the case of Blount v. Walker, 31 S.C. 13, 9 S.E., 804, the testatrix devised the estate to a trustee, for the life of Mrs. Blount, her daughter, and upon the death of the life tenant to her issue; in default of issue surviving her, for such persons as the life tenant might appoint by will. The life tenant died without leaving issue and without having exercised the power of appointment by will. The question arose as to who was entitled to the estate upon the falling in of the life estate — the heirs of the testatrix at her death, or the heirs of the testatrix at the termination of the life estate. There was nothing in the will directing a disposition of the estate in the contingency which happened. The Court held that, under the circumstances, the trustee who was vested with the legal title, held it in trust for those heirs of the testatrix who were alive at the time of the death of the life tenant, the time at which the resulting trust arose. Stress is laid by the Court upon the fact that the fee was vested in the trustee, so that it could not be a case of intestacy.
In Boykin v. Springs, 66 S.C. 362, 44 S.E., 934, 937, the Court said: "A contingent remainder, technically speaking, is not an estate in lands, but is the possibility of one. If the remaindermen be ascertained, it is a possibility coupled with an interest, and it is a devisable, transmissible, and in equity assignable; but if the remaindermen be not ascertained, such bare possibility is not capable for devise, transmission, or assignment. 20 Ency. Law, 849; Allston v. Bank, 2 Hill Eq., 235; Roundtree v. Roundtree, 26 S.C. 451, 2 S.E., 474."
A non-transmissible contingent remainder is not subject to the lien of a judgment. Allston v. Bank of South Carolina, 2 Hill Eq., 235.
We are much impressed by the statement of Chief Justice Simpson, dissenting, in the case of Blount v. Walker, 31 S.C. 13, 9 S.E., 804, 809: "The vital question, then, in the first instance, is, did Mrs. Harris die intestate as to the property in question. There is no doubt but that Mrs. Harris left a will, and yet it is equally as certain that there was no beneficial interest disposed of to anyone, except a life estate to Mrs. Blount. There was a contingency, which if it had happened, would have accomplished a disposition of the whole estate; but, it not happening, it was the same as if no such contingent disposition had been attempted, and the will should now be read as if such provision had not been incorporated therein, * * *" and the law would have cast the same upon her (Mrs. Harris) heir or heirs in being at her death.
Consequently all that we would have would be a life estate in the widow with no disposition of the fee, which fee would descend to the heirs of the testator at the time of his death, the plaintiff and the two children; and, the interests of the children having descended to her as their sole heir at law, she would be entitled to the whole estate.
It is unquestionably true that the result attained is not sustained by anything in the will; but that is due to the failure of the testator to dispose of the fee, and the impossibility of deducting the intention which he might have entertained if he had contemplated the improbable events of both children dying during the lifetime of their mother. Having made no such disposition, the law makes it for him.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for further orders consistent herewith.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and CARTER concur.
For the reasons stated by his Honor, Judge Grimball, in his decree, which will be reported, I think the judgment of the Circuit Court should be affirmed.