¶1
The opinion of the Court was delivered by
Mr. Justice Carter.
¶2
The issues involved in this case are set forth in the decree of his Honor, Judge E. C. Dennis, who heard the cause on an agreed statement of facts. The decree, which his Honor issued, is satisfactory to this Court. The exceptions are therefore overruled, and the decree appealed from is affirmed.
Mr. Chief Justice BeEase and Mr. Justice StabeEr and Mr. Acting Associate Justice Cosgrove: concur.
Mr. Justice Cothran dissents.
Download
Copy
Embed on your site
iframe Markdown Preview card Button Hover to preview · click to copy the code
Case posture Posture Before DENNIS, J., Marlboro, March, 1930. Affirmed.Suit by John B. Burkhalter against Peter L. Breeden and others. From an adverse decree, plaintiff appeals.
The decree of the Circuit Judge, reported in accordance with direction, is as follows:
This cause comes before me on the pleadings, the exhibits attached, and records entered by agreement of attorneys on both sides. The matter involves the construction of the will of the late Capt. Peter L. Breeden, of Marlboro County, who died October 10, 1919, leaving a very large and valuable estate.
At the time of his death, testator was survived by his widow, and three children, Alma Burkhalter, Margaret Holiday, and J.A. Breeden. The widow has since died and her estate has been divided among the three named children.
The portions of the will and codicil pertinent to the present inquiry are as follows:
From the Will:
Item 3. I will and devise to my son, Julius Aubrey Breeden, for and during his lifetime only, my Longview Plantation, sometimes called the McFarland lands, containing six hundred and seventy-two acres. Also the Grant lot in Bennettsville, S.C. containing thereon two dwellings, situate at the corner of Darlington and Parsonage Streets, and at the death of my said son, all the foregoing property I will and devise absolutely and forever to the then living children of my said son, the child or children of a deceased child to represent his, her, or their parent. I will and devise to my daughter, Alma E. Burkhalter, for and during her life time only, one-half of my Adamsville Plantation, this one-half being designated on general plat made by John R. Parker as Tract Number One containing three hundred
and seventy-three acres, the dividing line being the Blue line drawn across said plat, this Blue line begins at stake 3 XN on my line on Easterlings land and runs north, 38 west across Beverly's Mill Creek to John L. Breeden lands, and at the death of my said daughter, I will and devise said lands, absolutely, to her then living children, the child or children of any deceased child to take the share of his, her, or their parent, and to my daughter, Margaret E. Holliday, I will and devise the other one-half of my said Adamsville Plantation containing three hundred and seventy-three acres, designated on the above plat of J.R. Parker, Number Two, the Blue line across said plat to be the dividing line, for and during the life time of my said daughter only, and at her death to go absolutely and forever unto her children living at her death, the child or children of any deceased child to take the share of his, her or their parent would take if living. It is further my will that should either of my children die without children or lineal descendants him or her surviving, that in such event the lands herein willed to him or her for life, shall go to my surviving children upon all the terms, limitations and conditions as provided above in this item. Should Aubrey die leaving children and my daughter, Margaret, die leaving no children, then under this provision it would be my intention that one-half of Tract Number Two would go to Alma for life and the other one-half would go to the children of Aubrey. It is further my will and the above devises for life to my three children in this item are made to them upon the express conditions that they shall not in any way nor manner encumber said lands by mortgage or otherwise, and should either attempt to sell same, or suffer same sold by any legal process it is my will and I hereby cancel said life estate and will and devise said life estate absolutely and forever to the remaindermen as provided and designated in the first part of this item.
Item 4. I will, devise and bequeath unto my daughter, Alma, and to her heirs and assigns, absolutely and forever,
the house and lot in the City of Columbia, S.C. on the corner of Park and Richland Streets, also my two-story brick office in Bennettsville, S.C. on the north side of Darlington Street, also seven thousand dollars in money or good securities as my executors may elect and twenty-five shares of the stock of the Marlboro Cotton Mills. I will and devise and bequeath unto my daughter, Margaret, and to her heirs and assigns absolutely and forever, the house and lot on Parsonage Street, where J.T. Medlin now resides and all the real estate owned by me on the west side of Cheraw Street in the Town of Bennettsville, bounded also by Darlington Street, lands of Mrs. Weatherly and others, also twenty-five shares of Marlboro Mills Stock, twenty shares of stock in the R.E. Allen Company of Greenville, S.C. and ten thousand dollars in money or good securities, as my executors may elect.
Item 7. I will, devise and bequeath any and all balance and remainder of my estate and property, absolutely and forever and share and share alike to my wife and three children, to each one-fourth of same.
From the codicil the following:
I, Peter L. Breeden, of said county and State, hereby ratify and confirm my last will and testament, in the handwriting of D.D. McColl, Sr., deceased, dated January 18, 1907, except as the same is altered and changed by this codicil.
I desire to reiterate and strengthen the provisions of my original will to the effect that my three children shall have only a life estate in three tracts of farming lands devised to them, and that none of said children is to encumber said lands or attempt to sell the same or permit said lands to be sold in any manner whatsoever. It is my will and desire that said farming lands shall be used and enjoyed by said three children during their lives and that after their deaths same identical lands shall go to their children or other lineal descendants, as hereinbefore fixed. If any one of my children
shall voluntarily attempt to sell or encumber by mortgage his or her interest in said lands, or if any one of my children shall apply or permit application to be made to any Court for an order to sell his or her interest in said lands, then the life estate of such child shall eo instanti end and determine, and the estate provided in this will for the remaindermen shall immediately vest in such remaindermen. It is my earnest will and desire that no Court shall permit a sale of any of said farming lands for the purpose of making a change of investment.
Item 6. In case that any of my children should contest any part of my last will, they shall thereupon forfeit all right to participate in my estate and the share which would have gone to such child so contesting shall be immediately vested in his or her children, and in case the one so contesting has no children, then in equal shares to my other children. I desire my last will as written to be carried out, and any effort to abrogate or set same aside, shall work a forfeiture of the child or children so attempting to set same aside. This provision, however, does not refer to any action that my executors may consider necessary to obtain the instructions of the Court in the event that they may be in doubt about their duty under this will or in case any difference of opinion or conflict should arise among my executors, hereinafter named as to their duties.
Item 7. In the third item of my will I willed and devised to my two daughters, Alma E. Burkhalter and Margaret E. Holliday, my Adamsville Plantation. I now ratify and confirm this devise upon the very same terms, limitations and conditions already expressed in my will, and the only change intended to be accomplished by this paragraph of my codicil, is to show that the one-half of my said plantation devised to Alma E. Burkhalter for life is shown on the plat made for me by J.M. Johnson, February, 1907, as Tract Number One, containing three hundred and seventy-seven and thirty-five hundredths (377.35) acres. My two
daughters, Alma E. Burkhalter and Margaret B. Holiday, are to receive their respective parts of the Adamsville Plantation under all the terms, limitations and conditions expressed in my original will.
Item 8. It is furthermore my will and desire that my son, J. Aubrey Breeden, shall hold the life estate devised to him in Item three, as Trustee, for the benefit of his wife and children and provide for them out of said life estates sufficient support, and his said life estate in Longview Plantation is conditioned on his paying at least one-half of the annual proceeds of rent of said plantation to his wife, or in the event of her death, to her son, Peter L. Breeden, as Trustee, for the support of the family, and in case the said J. Aubrey Breeden shall fail to perform fully and completely, said conditions, as herein expressed, then he shall immediately cease to have any interest in Longview Plantation and his life estate therein shall terminate and the said Longview Plantation shall immediately vest, in fee simple estate, in the remaindermen who are his children.
After the death of the testator all parties took under the will. On May 7, 1923, one of the daughters, Alma Burkhalter, conveyed by deed to her only son, John B. Burkhalter, the plaintiff herein, all her right, title, and interest in the property devised by Item 3 of the will; and simultaneously therewith the said John B. Burkhalter executed an instrument in writing whereby he conveyed back to her a lease of the same lands for an initial term of ten years with provisions automatically carrying it forward indefinitely after the expiration of this term in the absence of positive action by the parties to bring it to an end.
On January 14, 1925, however, Mrs. Burkhalter executed another instrument canceling the said lease and releasing her said rights thereunder to the said John B. Burkhalter. Some time later this action was instituted, and in it the said John B. Burkhalter seeks to have the Court to declare that he is the owner in fee of the portion
of the Adamsville Plantation devised in Item 3 of the will to his mother; that by reason of the deed of his mother, the life tenant, her life estate was ended, and that he became invested immediately with the absolute fee-simple title of the said tract, freed from all the limitations and conditions of the will, and that the defendants or their descendants, heirs at law, or devisees were barred of any present or future rights arising out of any of the limitations, conditions, and terms of the will and of the codicil thereto, alleging that a claim to any right under the said terms of the will was a cloud upon his title.
As heretofore noted, the question then presented is the proper construction of the will and codicil of the testator; the plaintiff claiming that by the act of the life tenant the property has become vested in her son the plaintiff with all contingencies defeated; the defendants claiming to the contrary.
The construction contended for by the plaintiff would manifestly result in a holding that had the other daughter, Margaret, who has no children, made a similar conveyance and thereafter had children born to her who should be alive at the time of her death, such children could not take under the will, as all their rights would thereunder and thereby have been taken away; that in the present instance should the said Alma Burkhalter hereafter have other children born, they would take nothing under the will, as the fee would be vested in the plaintiff, John B., the only child at this time, to the exclusion of any such after-born children; that had the three children been childless at the time of the death of the testator by a conveyance from one to the other the specific property conveyed for life would have become accelerated into a fee in the identical life tenants by their own acts thereabout.
I am convinced that such was not the intention of the testator and his intention, unless prohibited by some rule of law, should be carried out. The terms of the will and of the
codicil do not disclose any greater solicitude for the plaintiff than for the testator's other children and grandchildren, and, on the contrary, it is manifest to me that his anxiety was to confine for as long a period as possible to his own stock the possession of these farm lands, and it cannot be believed that he intended that his purpose could be avoided by the simple device used in this case.
In fact, the plaintiff is perilously near the precipice of forfeiture provided in the will, if in fact, he is not within its provisions directly; but no point was made about this in the hearing before me, and it is not intended hereby to be decided either way. Hereinbefore I have already decided that the intention of the testator as manifest in his will is not as contended by the plaintiff. To determine whether or not the law requires, despite the intention, such a result to follow, entails a consideration of the subjects of acceleration of remainders and mergers and the defeating of contingent remainders, and to discuss and set out in detail my reasons for the conclusions which I have reached will take more time than I feel that I can give to this case at this time. Briefly, however, I hold that there is no rule of law requiring such a result; that the period of distribution intended by the testator was the death of the life tenant; and that whatever right the defendants took under the terms of the will have not been cut off in this case, but continue unaffected by the actions of the plaintiff and his mother; and that the prayer of the plaintiff must be, and is hereby, denied and the complaint dismissed. Source: CourtListener
