Opinion
8574
June 10, 1913.
Before DeVORE, J., Greenville, January, 1913. Affirmed.
Action by G.M. Dillard, et al., against M.F. Dillard, as executor of M.G. Dillard, and in his own right, H.L. Dillard et al. Plaintiffs appeal. The circuit decree is:
"M.G. Dillard, of Greenville county, died in February, 1876. He had been married twice. By the first marriage he had nine children, and by the second marriage he had three children, to wit: H.L. Dillard, Susie Dillard (now Elmore) and J.D. Dillard. The last mentioned died several years ago, leaving a widow and several children, to wit: Manning Dillard, Bessie Dillard (now Smith), Troy Dillard, Wm. Dillard and Herbert Dillard. The testator's widow, Susan Dillard, died several months before the commencement of this action.
"M.G. Dillard left a will by which he gave to his wife, Susan Dillard, the home tract of land containing 300 acres, more or less, and certain household furniture, and other personal property `during her natural life and widowhood in lieu of all claims of dower and all other claims in my estate; and at her death, or marriage, all of the above-mentioned property should be sold and equally divided between my three youngest children, if living, if not living, then to go back to my estate.'
"The controversy between the plaintiffs and the defendants relates to that share in the home place to which J.D. Dillard would have been entitled had he lived. The plaintiffs contend that by the terms of the will, this share reverted to the estate and passed under the seventh clause.
"The testator's purpose, as disclosed by the will, must prevail even though it involve the rejection or addition of words, or their restraint from their usual meaning. Clark v. Clark, 19 S.C. 352.
"It is clear that the first objects of the testator's bounty, so far as concerns the property involved in the first clause of the will, were his wife, Susan Dillard, and her three minor children. The limitation over in favor of the children by the first marriage was to take effect only in case the three youngest children were not living. The executor was directed to sell the land for the purpose of division among the youngest children; but the limitation over was of the land itself, and not of the proceeds of the land or a share in such proceeds. Clearly, these provisions were alternative in their character. On the falling in of the life estate one or the other was to take effect. If the three youngest children were living the land was to be sold and divided among them; if they were not living, the land was to go back to the estate and be divided among the children of the first marriage. The contingency upon which the first limitation was to fall and the limitation over was to arise was the death of the youngest set of children at the falling in of the life estate. The expression `if not living' clearly has reference to the youngest children collectively and not individually. The limitation over is upon their death.
"The testator dealt with the two sets of children as constituting two classes, or with the younger set collectively. The estate given to the younger set of children was to be defeated only in case they were not living; that is, only in case none of them were living. Stewart v. Sheffield, 13 East 526; Kersh v. Yongue, 7 Rich. Eq. 100; Schaffer v. Kettell, 14 Allen 528.
"The limitation over was to take effect on the death of the three youngest children. It was not intended to become operative while any of these younger children were living. Shank v. Mills, S.C. 2-358; Seabrook v. Mikell, Chev. Eq. 80.
"It follows from what has been stated that the limitation over has not taken effect and that the plaintiffs can claim nothing under his will.
"H.L. Dillard and Susie Elmore, the survivors of the three youngest children, have by their answer, consented that any interest which they may have in the share which would have gone to J.D. Dillard had he lived, be vested in his widow and children. It is, accordingly, so decreed, and it is declared by the judgment of this Court that such interest which they, the said H.L. Dillard and Susie Elmore, may have in the share which would have gone to J.D. Dillard be, and the same is hereby, vested in the widow and children of the said J.D. Dillard.
"In view of what has just been said, it would be idle to discuss the question as to whether under the limitations of the will the share of J.D. Dillard passed to his representatives or to the survivors of the class designated as the three youngest children.
"It is, therefore, ordered and decreed that the widow and children of J.D. Dillard, take among them the one-third interest in the proceeds of the sale of said lands, that is, unto the widow, Minnie Dillard, an interest equal to one-third, and the remaining two-thirds to be equally divided among the children, to wit: Manning Dillard, Bessie Smith, Troy Dillard, Wm. Dillard and Herbert.
"It is further ordered that the plaintiffs pay the cost of this proceeding."
Messrs. McCullough, Martin Blythe, for appellants, cite: The surviving brother and sister cannot take under the doctrine of cross limitations; Moorman's Lim. of Estates 44, 45; 21 S.C. 513; 23 S.C. 224; 57 Am. St. R. 533; 67 L.R.A. 146; 72 S.C. 184. Interest of deceased brother is not transmissible to his heirs at law: 16 Cyc. 309; 40 Cyc. 1660, 1683; Moorman's Lim. Estates 23; 87 S.C. 64; 23 S.C. 216; 26 S.C. 472; 25 S.C. 359. Equitable conversion: 9 Cyc. 835, 837, 829.
Messrs. Haynsworth Haynsworth, contra, cite: Purpose of testator must prevail: 19 S.C. 352; 4 S.C. 76. Property converted into personalty: 23 S.C. 513. Gift to class: Jarman on Wills 534; 14 Allen 528; 25 S.C. 358; 59 S.C. 4; 2 McCh. 256, 440; 3 Jarman 372; 13 East 526; 7 Rich. Eq. 100; 99 Mass. 191.
June 10, 1913. The opinion of the Court was delivered by
The decree of the Circuit Court is affirmed for the reasons therein stated.