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16 S.C. Eq. 201

Seabroook v. Seabrook

Supreme Court of South Carolina

Decided May 15, 1841

Supreme Court of South Carolina · decided 1841-05-15

<p>The testator, by the 12th clause of his 'last will, declared, that in order to make provision for the five children by his “ present” marriage, his executors, or such of them as should qualify and act on his will, shall, as soon as may he convenient, or as the same may he deemed advisable, lay out and invest the sum of one hundred thousand dollars, in the purchase of lands and negroes, for the use of his estate. After directing that the lands and negroes, so to be purchased, together with certain other lands and negroes, should be kept together, and improved to the best advantage, until his eldest child, by this marriage, should attain to the age of twenty-one years ; he then directs that all the lands of his estate, not before specifically devised, the lands and negroes, so to be purchased by his executors, and four-sevenths of the negroes which he then owned, should be divided into five equal shares, among his said five children, allowing an equal portion to each. One of the said shares he devised to each of his said children, as they should respectively attain the full age of twenty-one years, with limitations on the land, hereinafter mentioned. After providing that the income of those under age, should fall into, and form a part of the testator’s residuary estate; and that eacli child, during minority, should receive only a proper education anda reasonable maintenance and support, out of the income of the said estate — he devises, “ to each of the said children, as they, severally •and successively, reach twenty-one years of age, the share, or portion of lands, that may ■be allotted to them, respectively, for and during their respective natural lives; and from and after the deaths, severally, of the said children, to the issue of each, in the manner therein particularly declared. And should any, or either of them, (the said five children,) respectively, depart this life, without leaving lawfully begotten issue, living at the time of his, her, or their deaths, respectively, who shall live to attain the age of twenty-one years, or dying before that time, leaving lawfully begotten issue, to live until the parent, ■if alive, would have reached twenty-one years of age — then the share, and shares, respectively, in the lands of such child, or children, respectively, so dying, shall revert to my estate; and I give, devise, &e., the share and shares of the said lands, so reverting, unto my own right heirs, forever. It being my wish and will, that the shares in my said lands, given to my said five children, respectively, shall go to their issue, respectively, so long as the law will permit the said lands to be so limited, and no longer. And that on the failure of their said issue, respectively, within the period so limited, the share and shares in the said lands of such issue, and of such issues, so failing, shall revert to my •estate. The issue of any one of my said five children, not inheriting, or taking under this will, from any other of my said children, except so far as on the happening of the ■contingencies here contemplated, they, the said issue, or any, or either of them, may be the right heirs of me, the said William Seabrook.”</p> <p>Joseph E. Seabrook, one of the five children of this marriage, died under age, and unmarried; and the widow of the testator insists that, by a proper construction of the will, she is entitled, as one of the right heirs of the testator’s will, to one-third of the share of the lands which were to be allotted to J. E. Seabrook, and the ten children surviving the testator, (of whom Joseph was one,) to the other two-thirds ; or if excluded as one of the right heirs of the testator, she is entitled, as an heir of her son, J. E. S., to ■a proportion of one-tenth of his share, which vested in him.</p> <p>It was held, among other things :</p> <p>1. That Joseph Edings Seabrook took no interest in the lands.</p> <p>2. That the widow was included within the description of the right heirs of the tes. tator.</p> <p>3. That on the death of J. E. S., his share of the real estate passed to the right heirs of the estate.</p> <p>4. That the widow, accepting the share allotted to her by the first clause of the testa, tor’s will, which declares that this shall be in lieu and bar of dower, &c. &c., and when a distinct and separate provision was made for her — she is excluded from insisting on her right, acquired under the statute, and by mere operation of law. It is altogether a ques. tion of law, and not of intention.</p> <p>5. That the bequest of the negroes to J. E. Seabrook, did not vest an absolute interest in him, at the time of the death of the testator.</p> <p>6. That by the codicil, what remains, after satisfying the twenty thousand dollars, (willed for charitable purposes,) is distributable among the children of the testator generally.</p> <p>7. That the residuary clause of the codicil repealed, or modified, the residuary clause of the will.</p>

Decided 1841-05-15

Ouria,per Harper, Chancellor.

¶1We concur with the Chancellor who heard the cause in most of the points decided by the decree, and' do not think it necessary to add to the reasoning. I would reserve my own opinion on the question, whether the wife can take under the description .of the right heirs of the testator. By the terms of the Act of 1791, the provision for the wife, seems to be made as a substitute for dower, and the Act declares that, if accepted by her, it shall be in lieu and bar of dower.

¶2We differ, however, from the Chancellor, as to the construction of the residuary clause of the codicil, and think it must be taken to extend to the entire residuary estate of the testator. It may be a probable conjecture, that the *215testator, (having, in the meantime, received the proceeds of his crop,) by his codicil, intended only the stock and money, which should be on hand at the time of his death, but we are not authorized to determine, upon conjecture, contrary to the import of the words. It will be recollected, that by the will, the entire residuary estate has been directed to be turned into money, and the words, “ stock and money,” therefore, will include the whole residue. There is some obscurity and confusion in the will, from the testator’s first saying, in the residuary clauses, that the residue of his estate will be very considerable, and then speaking doubtfully, as whether there will be a sufficiency to pay the legacy of $20,000 to the school, and then doubtfully, whether there will be a further residue to be given to the children. But the rents, profits, and income of the estate, to be vested for the younger children, are expressly included in those clauses. By the codicil, a different disposition is made of the $20,000, giving only one half of it to the School, one fourth to the Church, and another fourth to a friend. It seems that we can make nothing more of it than this, by the will, he gives what shall remain, after satisfying the 20,000, to the children, who shall attain 21. By the codicil, he gives what shall remain, after satisfying the $20,000, to the children, generally, in terms, to vest it presently. It does not appear to us, that these provisions can be taken to relate to different residues.

¶3The decree is modified accordingly.

¶4WM. HARPER.

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