Opinion
10696
August 1, 1921.
Before De VORE, J., Greenville, November, 1920. Affirmed.
Action by Mattie Guest Turner against H.T. Guest et al. Decree for plaintiff and defendants appeal.
Messrs. Bonham Price and H.C. McKnight, for appellants, cite: Rule in Shelley's case: 29 L.R.A. (N.S.) 1000. Not applicable: 23 S.C. 46; 24 S.C. 204; 9 L.R.A. 165; 16 S.C. 220. Right of co-tenant to recover for improvements: 24 S.C. 264; 81 S.C. 288.
Messrs. Martin Henry, for respondent, cite: Every requirement of Rule in Shelley's case is present: 3 Hill 193; 83 S.C. 266; 76 S.C. 36; 67 S.C. 120; (5 Rich. Eq.) 26 S.C. Eq. 356; 95 S.C. 32; 103 S.C. 202; 86 S.C. 237; 104 S.C. 426. Vested remainder: 87 S.C. 57; 1 Hill Ch. 357; 44 S.C. 503; 104 S.C. 426; 1 Strob. Eq. 43; Dudley Eq. 201; 9 Rich. Eq. 459; 12 Rich. Eq. 114. Posthumous child takes portion of parent's estate: 18 S.C. 55; 1 Civ. Code 1912, Sec. 3553; 1 McC. 456. Construction of will: 59 S.C. 148; 9 S.C. 229. Co-tenant makes improvements at his peril: 28 S.C. 562; 58 S.C. 547.
August 1, 1921. The opinion of the Court was delivered by
The appellants in their argument on appeal thus state the facts and issues.
"John Guest, a resident of the upper section of Greenville County, died in March, 1884, leaving certain lands and a will and codicil, the construction of which is a material part in this case. John Guest had been married twice, his first wife being Nancy Guest and his second wife Jane Guest. By his first wife, the deceased had two sons, the defendants, H.T. Guest and John E. Guest. By his second wife, he had two sons, the defendants Squire E. Guest and William Guest, the predeceased husband of the plaintiff, Mattie Guest Turner. William Guest died May 22, 1894, leaving his wife and posthumous child. This posthumous child died in about four weeks after its birth. Plaintiff had moved away from the home of her husband's people, and later married again. Jane Guest, the widow of John Guest, died on May 12, 1917, and this suit is brought to partition land under the will. The master held that the sons of John Guest had a fee-simple title to the land upon the death of the life tenant, Jane Guest, in May, 1917. The master entirely ignored the question of the improvements placed on the land by Squire E. Guest and the money advanced by the three eldest sons in paying off the debts of the estate."
"The exceptions raise three questions:
"(1) Did the four sons of John Guest have a fee-simple interest in the land under the terms of the will upon the death of Jane Guest?
"(2) Was the defendant Squire E. Guest entitled to an accounting with the plaintiff for the new buildings erected by him upon the land in which the plaintiff claims an interest?
"(3) Are the defendants entitled to reimbursement for the money which they paid out to satisfy the mortgages and debts against the land?"
The portion of the will of John Guest upon which appellants' case rests are:
"Item 4. It is my will that after the death of my wife, Jane Guest, that that part of my land that was inherited by my first wife, Nancy Guest, to be equally divided between H.T. Guest and John E. Guest, and the remaining part to be equally divided between Squire E. Guest [and] William Guest, the use and proceeds and possession of which is to be theirs during their natural lifetime, but not subject to any debt of their contracting or by them sold, but descend [to] their lawful heirs."
To this last will and testament the following codicil was made:
"I this day make this change or alteration in item 4th of the within will made by me on the 8th day of May, 1883. That a straight line shall be run beginning at the old spring on the river and running a northwesterly course to the corner where the land inherited by my first wife, Nance, and the land I bought joins on Langford's land and the southwest side of said [land], to be divided betwen H.T. Guest and John E. Guest, and other side divided according to directions in item 4th of the within will." "And that item 4th shall read lifetime or widowhood instead of lifetime."
The Master and Circuit Judge held that the sons of John Guest took fee-simple interests. The authorities, too numerous to cite, hold that words such as are used here carry a fee-simple. Even if these words should be construed in their popular and not in their legal sense, it can avail the appellants nothing. The devise to Jane for life, with remainder to William for life, with remainder to the heirs of William, would certainly give William a vested interest in whatever estate he took. After the life estate to William, his share went to his lawful heirs, i. e., to his wife and child, and on the death of the child its share went to its mother, the plaintiff herein. The interest of William went, under the will, to the plaintiff in either case.
The appellant claims that the master and trial Judge ignored the issues as to improvements, and money advanced to pay the debts. In this the appellant is mistaken. The master held, "None of the other issues raised by the parties is sustained by testimony." In this holding by the master there was no error. The income from the property and the work of the sons, William included, paid the debts and made the improvements. At least there was no evidence from which a contrary finding could have been made.
The judgment appealed from is affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur.
MR. JUSTICE COTHRAN: I concur in the result. So far as the interest of the plaintiff is concerned it makes no difference whether the sons take fee-simple titles or life estates with remainders to their children. I reserve my opinion upon the effect of the provision forbidding a sale of the property, which under McWhite v. Roseman, 114 S.C. 177, 103 S.E. 586, is indicative of an intention on the part of the testator that the sons should not take fee-simple estates.