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The opinion of the Court was delivered by
Mr. Chirr Justice Brease.
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On the first hearing of this appeal, our judgment was an affirmance of the decree of his Honor, Judge Shipp, appealed
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from. A very able and earnest petition for a rehearing on the part of the appellants was granted, that the Court might give further consideration to the important issues involved in the cause. We have again gone into the case thoroughly, and are firmly convinced that the decree of Judge Shipp, under well-established principles of law, was correct. It will be reported, and is affirmed.
Messrs. Justices Stabler, Carter and Bonham concur.
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Case posture Posture Before SHIPP, J., Darlington, November, 1928. Affirmed.Action by Mary C. Davis and another against Elizabeth Dalrymple and others. From decree plaintiffs appeal.
Decree of Judge Shipp, requested to be reported, was as follows:
This action in the Court of Common Pleas of Darlington County, in the Fourth Judicial Circuit, comes before me because Honorable E.C. Dennis, Judge of that circuit, is disqualified.
In October, 1914, James Sidney Dalrymple, a resident of Darlington County, died, leaving a will whereby the lands involved in this action were disposed of as follows:
I give, devise and bequeath all of the residue and remainder of my estate both real and personal, consisting of a tract
of one hundred and seventeen acres of land be the same more or less on which I now reside, and all the personal property I now possess, including stock of all kinds, household property of all kinds, money and other valuables to me belonging, to my beloved wife, Elizabeth Dalrymple, to have and to hold to her my said wife and to her bodily heirs by me, she to have and enjoy the same during her lifetime, and at her death to go to her heirs by me, equal.
And having acquired a tract three hundred and twelve and 50/100 acres in Chesterfield County, State aforesaid, as described in a deed from the Chesterfield Development Corporation, a corporation duly chartered, the same being fully described in a deed from said corporation signed and executed the first day of January, in the year of our Lord one thousand nine hundred and twelve.
I now devise and bequeath this land to my beloved wife, together with all the appurtenances thereto to belong to my wife, Elizabeth Dalrymple, to have and to hold to my wife and to her bodily heirs by me. She to have and enjoy the same during her lifetime and at her death to go to her heirs by me, equal.
On or about the 31st day of January, 1920, Mrs. Elizabeth Dalrymple, widow of the testator and one of his devisees, commenced an action in the Court of Common Pleas for Chesterfield County against his other devisees, who were his children, Mary C. Dalrymple (now Mary C. Davis) and James Floyd Dalrymple, the plaintiffs, in this action, and Thomas F. Dalrymple, Boyd D. Dalrymple, J.T. Dalrymple, and J.H. Moore, who are this defendant's codefendants herein. In the Chesterfield case, the plaintiff alleged that she was the widow of the said James Sidney Dalrymple and that the defendants, except J.H. Moore, were his children, and that under and by virtue of his will she acquire a fee-conditional estate in the land described in her complaint and that she had entered into an agreement with the defendant, J.H. Moore, to sell and convey the same to him, but that he had
refused to accept her deed therefor on the ground that, under the will her late husband, James Sidney Dalrymple, it might be held that her children by him had some interest in the land, and that the said J.H. Moore had requested that she have the will construed by the Court so that he, upon payment of the purchase price, would receive an unquestionable title. The plaintiff prayed that the will be construed and that she be adjudged to have a fee-conditional estate in the land in question, but that, if it should be held that she had only a life estate, the clerk of Court of Chesterfield County be authorized and directed to convey to the defendant, J.H. Moore, all the right, title, and interest of the infant defendants in said premises.
All the defendants answered. The adults admitted the allegations of the complaint and joined in the plaintiff's prayer for relief. The infant defendants filed the usual formal answer by their guardian ad litem . All persons having any interest in the land under the will of James Sidney Dalrymple were before the Court.
Hon. John S. Wilson, presiding in the Fourth Circuit, heard the case at his chambers in Darlington and on March 29, 1920, filed a decree in which he held that the plaintiff, Elizabeth Dalrymple, has a fee-conditional estate in this land and the right to convey the same in fee simple to the defendant, J.H. Moore. The case of Whitworth v. Stuckey , 1 Rich. Eq., 404, is conclusive of this question. See, also, the cases of Simms v. Buist , 52 S.C. 554 , 30 S.E., 400 ; Adams v. Verner , 102 S.C. 7 , 86 S.E., 211 ; Surles v. McLaurin , 94 S.C. 308 , 77 S.E., 944 .
Subsequently, Mrs. Dalrymple sold and conveyed the land involved in that action to the defendant J.H. Moore, who paid a part of the purchase price and gave his bond and mortgage for the remainder.
In December, 1927, this action was commenced by Mary C. Davis and James Floyd Dalrymple, who were defendants in the Chesterfield case, against their mother, Mrs. Elizabeth
Dalrymple, their brothers, Thomas F. Dalrymple, Boyd Dalrymple, and J.T. Sidney Dalrymple, and J.H. Moore, all of whom were parties to the said action in Chesterfield County, and against B.W. Best and C.M. Pennington, who it is alleged, had some interest in the premises as lienees.
In the complaint in this action, it is alleged that Mrs. Elizabeth Dalrymple has only a life estate in the lands described in the complaint and consequently conveyed only a life estate to the defendant, J.H. Moore, but that she claims to be the owner in fee, and her claim and her acts in connection therewith have created a cloud upon the title of the plaintiffs, who are remaindermen in fee; and it is prayed that the will be construed and the rights and interests of the parties to the action be adjudicated, and that the deed from Elizabeth Dalrymple to J.H. Moore be adjudged to vest in him only the life interest of Elizabeth Dalrymple, etc.
The defendants Elizabeth Dalrymple, and her children, Thomas F. Dalrymple, Boyd Dalrymple and J.T. Sidney Dalrymple, and the defendant J.H. Moore, answered, admitting the death of James Sidney Dalrymple, leaving his will whereby he devised the lands in question in the language quoted in the complaint and that thereafter Mrs. Elizabeth Dalrymple sold and conveyed 312 1/2 acres of land to the defendant J.H. Moore and received a part of the purchase price and accepted his bond and mortgage for the remainder, but denied that she acquired only a life estate under the will of her late husband, and alleged that she acquired a fee-conditional estate and that her grantee, J.H. Moore, acquired title in fee simple. The said defendant also plead the decree of the Court of Common Pleas of Chesterfield County, from which there was no appeal, and alleged that the plaintiffs are thereby precluded and estopped from maintaining this action.
It is contended by the defendants' attorneys that the issues raised by the pleadings herein are res judicata; that this action is a collateral attack upon the judgment in the Chesterfield , and that in any event the plaintiffs cannot prevail because the defendant Mrs. Elizabeth Dalrymple acquired a fee-conditional estate under the will of her husband.
The record herein discloses that the Court of Common Pleas of Chesterfield County, having jurisdiction of the subject-matter and having acquired jurisdiction of all persons who had any interest in the land that was the subject of that action, held that Mrs. Elizabeth Dalrymple had a fee-conditional estate and could convey the same in fee simple to the defendant J.H. Moore. There was no appeal from the decree of Judge Wilson, and Mrs. Dalrymple thereafter conveyed said land to the defendant, J.H. Moore.
Plaintiffs' attorney admits in argument that Mr. Moore's title cannot be successfully attacked, but contends that the rights of the parties to said action, in other lands affected by said will, were not adjudicated and should be determined by a decree of this Court. I am of the opinion that the question of title presented by the complaint in this action is res judicata in so far as it relates to the title of J.H. Moore, but that the decree in the Chesterfield case did not adjudicate the rights of the parties in any other land, and I so hold. For the same reason, I hold that, in so far as this action relates to the land that was not conveyed to J.H. Moore, it is not a collateral attack upon the judgment in the Chesterfield case. I will therefore consider what interest Mrs. Dalrymple acquired under the will of her husband.
The testator devised one tract of land to his wife to have and to hold to her, my said wife, and to her bodily heirs by me, she to have and enjoy the same during her lifetime, and at her death to go to her heirs by me, equal.
He devised the other tract of land to her in the following language: I now devise and bequeath this land to my beloved wife, together with all the appurtenances thereto to belong to my wife, Elizabeth Dalrymple, to have and to hold to my wife and to her bodily heirs by me. She to have
and enjoy the same during her lifetime and at her death to go to her heirs by me, equal.
In the case of Adams et al. v. Verner , 102 S.C. 7 , 86 S.E., 211 , the Supreme Court of this State construed a devise by the testatrix to her daughter-in-law to her and the heirs of her body by her husband, absolutely in fee-simple forever. At the date of the will her daughter-in-law had four children, and five when the devise took effect. The Court held that the words absolutely in fee-simple forever were not wholly inconsistent with the devise to her and the heirs of her body and did not modify the conditional fee created by the language last quoted. In reaching that conclusion, the Court said that the heirs of her body by the said H.D.A. Bieman are the most apt to create a fee-conditional special.
It should be observed that in the will involved in the case at bar, the testator devised the land to his wife for life and at her death to her bodily heirs by me.
But it is contended by plaintiffs' attorney that the word equal changes the limitation.
In the case of Williams v. Foster , 3 Hill (S.C.), 193, it was held that under a devise to C, to hold to him during his natural life and after his death I give the same to his lawful heirs, to be equally divided, the rule in Shelley's Case applied, and that the superadded words to be equally divided, did not take the case out of the rule.
The case of Williams v. Foster is reaffirmed in the later case of Simms v. Buist , 52 S.C. 554 , 30 S.E., 400 , 404 , in which Chief Justice McIver, speaking for the Court, used the following language: Subsequent examination in reference to the present case only serves to confirm the opinion then expressed, and has also disclosed the case of Williams v. Foster , 3 Hill (S.C.), 193, in which it was expressly held that under a devise to C, `to hold to him during his natural life, and after his death I give the same to his lawful heirs, to be equally divided,' the rule in Shelley's Case applied, and
that the superadded words, `to be equally divided,' did not take the case out of the rule. It is quite true that the limitation in that case ( Williams v. Foster ) was to `heirs,' and not to `heirs of the body'; but that circumstances manifestly was not regarded as making any difference, for Harper, Ch., in delivering the opinion of the Court, uses this language: `But, on the clear preponderance of authority, I think it fully settled that, even where the limitation is to the heirs of the body, the superadded words cannot have that effect' — that is, cannot have the effect of taking the case out of the operation of the rule in Shelley's Case.
If the testator, after devising the land to his wife for life and after her death to her heirs by me, equal, had added the words to them and their heirs forever, there would be no doubt that Mrs. Dalrymple acquired only a life estate, and the plaintiffs' claim to an interest in remainder in fee would prevail. Thomson v. Russell et al. , 131 S.C. 529 , 128 S.E., 421 .
In the light of these cases of Thomas et al. v. Russell, Adams v. Verner, Williams v. Foster , and Simms v. Buist , hereinbefore referred to, and the case cited by Judge Wilson in the Chesterfield case , I conclude that the defendant, Mrs. Elizabeth Dalrymple acquired a fee-conditional estate under the will of her husband, and can therefore dispose of the lands in question at will.
For the reasons hereinbefore stated, it is adjudged that the defendant, Elizabeth Dalrymple is seized of a fee-conditional estate under the will of her husband, James Sidney Dalrymple, and that the defendant, J.H. Moore, acquired from her an estate in fee simple; and it is therefore ordered that the complaint herein be dismissed. Source: CourtListener
