Opinion
13305
December 16, 1931.
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 case, 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.
Mr. Samuel Want, for appellants, cites: Rights of minors should be jealously guarded: 115 S.C. 35; 104 S.E., 321; 117 S.C. 175; 108 S.E., 411. Consent decree may be examined: Black's Jud. Prec., 83; 34 C.J., 779; 138 U.S. 552; 106 U.S. 679; 137 U.S. 48; 2 Hill Eq., 51; 9 Rich. Eq., 53. Stare decisis not applicable: 7 R.C.L., 1008, 1002, 1005. Rules of construction: 52 S.C. 554; 30 S.E., 400; 3 Hill, 193; 102 S.C. 7; 86 S.E., 211; 67 S.C. 130; 45 S.E., 137; 114 S.C. 177; 103 S.E., 586; 89 S.C. 561; 72 S.E., 468; 23 S.C. 42; 150 S.C. 358; 148 S.E., 188. "Heirs of body" construed to mean "children": 3 Rich. Eq., 156; 4 Des., 459; 42 S.C. 342; 20 S.E., 161; 25 S.C. 289; 36 S.C. 38; 15 S.C. 278; 114 S.C. 177; 103 S.E., 586; 142 S.C. 239; 140 S.E., 596; 86 S.C. 445; 68 S.E., 659; 113 S.C. 227; 102 S.E., 282.
Messrs. Dargan Paulling, for respondent, cite: Fee conditional: 102 S.C. 7; 86 S.E., 211; 3 Hill, 193; 52 S.C. 554; 30 S.E., 400; 1 Rich. Eq., 404; 94 S.C. 308; 77 S.E., 944; 131 S.C. 374; 127 S.E., 607; 123 S.C. 135; 115 S.E., 605. Remainder: 131 S.C. 529; 128 S.E., 421; 139 S.E., 203. Attack on Chesterfield decree collateral: 106 S.C. 486; 91 S.E., 796; 51 S.C. 333; 29 S.E., 73; 37 S.E., 102; 15 S.E., 736; 112 S.C. 284; 99 S.E., 801; 90 S.C. 552; 73 S.E., 1032; 116 S.C. 7; 106 S.E., 43; 126 S.C. 207; 119 S.E., 571; 56 S.C. 1; 33 S.E., 731; 87 A.S.R., 757. Res adjudicata: 80 S.C. 80; 61 S.E., 218; 128 A.S.R., 562; 81 S.C. 516; 62 S.E., 840; 108 S.C. 1; 93 S.E., 425; 125 S.C. 63; 118 S.E., 26; 84 S.C. 224; 66 S.E., 186; 87 S.C. 127; 69 S.E., 85; 84 S.C. 193; 65 S.E., 1050; 113 S.C. 217; 102 S.E., 210; 44 S.C. 1; 21 S.E., 617. Effect of judgment by consent: 15 R.C.L., 645-647; 79 S.C. 302; 60 S.E., 706. Decree unappealed from binding on parties: 106 S.C. 486; 91 S.E., 786. Additional grounds: 38 S.C. 308; 17 S.E., 24; 39 S.C. 5; 17 S.E., 355.
December 16, 1931. The opinion of the Court was delivered by
On the first hearing of this appeal, our judgment was an affirmance of the decree of his Honor, Judge Shipp, appealed 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.
This is an action by Mary C. Davis and James F. Dalrymple, children of J.S. Dalrymple, deceased, against their mother, Elizabeth Dalrymple, their brothers, Thomas F. Dalrymple, Boyd Dalrymple, and Sidney Dalrymple, two lien creditors of Elizabeth Dalrymple, B.W. Best and C.M. Pennington, and J.H. Moore a grantee of Elizabeth Dalrymple of a certain tract (later explained), for the purpose of obtaining an adjudication that in the real estate involved Elizabeth Dalrymple, the widow of J.S. Dalrymple, acquired under his will only a life estate, the remainder in fee vesting in the two plaintiffs and the three brothers named as defendants, the children of Elizabeth Dalrymple by her husband, the testator, J.S. Dalrymple.
It is necessary that a short family history of J.S. Dalrymple be given: He was married three times. His first wife was Margaret ......, and by her was born one child, William M. Dalrymple, who was alive at the time of the death of J.S. Dalrymple in October, 1914. His second wife was ......, and by her was born one child, J.D. Dalrymple, who predeceased his father, leaving a son, Elbert, who was alive at the time of the death of his grandfather. His third wife was Elizabeth ......, and by her were born five children, the plaintiffs, Mary C. Davis and James F. Dalrymple, and the defendants Thomas F. Dalrymple, Boyd Dalrymple, and J.T. Sidney Dalrymple, all of whom, including the wife, Elizabeth were alive at the time of the death of J.S. Dalrymple.
It appears that prior to his death in October, 1914, J.S. Dalrymple owned at least four tracts of land.
On October 18, 1882, he and his then wife, conveyed to William M. Dalrymple their only child, 140 acres of land in Darlington County. On March 8, 1897, J.S. Dalrymple conveyed to J.D. Dalrymple, the only child by his second wife, 118 acres of land, also in Darlington County.
At the time of his death J.S. Dalrymple owned a tract of 312.5 acres in Chesterfield County, and the home place, containing 117 acres, in Darlington County.
On May 19, 1914, he executed a will in which he bequeathed and devised, after the payment of his debts and funeral expenses, "all 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."
By the third paragraph of the will he bequeathed to his son, William M. Dalrymple, the sum of $10, adding: "He having previously had his portion in land." In the same paragraph he bequeathed to his grandson, Elbert, the sum of $10, adding: "His father having received his share of my property by deed also." The third paragraph of the will is explained by the fact that on October 18, 1882, J.S. Dalrymple and his then wife, Margaret Dalrymple, had conveyed 140 acres of land to William M. Dalrymple; and on March 8, 1897, he had conveyed 118 acres to J.D. Dalrymple, the father of Elbert, as before stated. These tracts are not now involved.
On June 25, 1914, J.S. Dalrymple executed a codicil to the will of May 19, 1914, and thereby devised the Chesterfield lands to his wife, Elizabeth, with this limitation: "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 January 31, 1920, Elizabeth Dalrymple commenced an action in the Court of Common Pleas of Chesterfield County against the children of J.S. Dalrymple and herself, Mary C. Dalrymple, now Davis, James Floyd Dalrymple, Thomas F. Dalrymple, Boyd Dalrymple, J.T.S. Dalrymple and J.H. Moore. She alleged she was the widow of J.S. Dalrymple, and that the defendants, except J.H. Moore were his children; that under his will she acquired a fee-conditional estate in the Chesterfield lands; 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 it might be held that her children by the testator had some interest in the land. She asked that the will be construed so that Moore upon payment of the purchase price would receive an unquestioned title; that it be adjudged that she owned a fee-conditional estate in the land. All of the defendants answered; the adults admitting the allegations of the complaint and joining in the prayer; the infant defendants filing formal answers by guardian ad litem. The case was heard by his Honor, Judge Wilson, and on March 29, 1920, he filed a decree holding that Elizabeth Dalrymple had a fee-conditional estate in the Chesterfield land and the right to convey the same in fee simple to the defendant J.H. Moore, issue having been born to her. Later Elizabeth Dalrymple sold and conveyed the land to Moore, who paid a part of the purchase money and gave his bond and mortgage for the remainder.
This action was commenced in December, 1927. The defendants other than the three sons contended that the Chesterfield proceedings were not only res judicata upon all parties, so far as the Chesterfield land was concerned, but were a judicial construction of the will, in practically the same terms so far as the home place in Darlington County was concerned.
The case was referred to C.E. Sligh, Esq., Probate Judge, to take the testimony and report it. Upon the coming in of his report the matter came up before his Honor, Judge Shipp. He filed a decree (which will be reported), dated November 24, 1928, in which he sustained the plea of res adjudicata of the Chesterfield proceedings in reference to the Chesterfield land, but overruled the contention that they had that effect in reference to the home place. He held, construing the will in reference to the home place, that Mrs. Elizabeth Dalrymple took a fee-conditional under the rule in Shelly's Case, and dismissed the complaint.
I agree with his conclusions as to the effect of the Chesterfield proceedings in both respects, but I do not agree with him in his conclusion that Elizabeth Dalrymple, the widow, took a fee-conditional under the will. On the contrary, I think that she took a life estate only, with remainder to the children of J.S. Dalrymple and herself in fee simple.
The limitation in the will affecting the home place, is as follows: "I give, devise and bequeath * * * my estate * * * real * * * consisting of the tract of 117 acres of land * * * on which I now reside * * * 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."
Taking the whole clause together, and giving each provision effect, it is clear that the limitation was to the wife for life, and at her death the remainder in fee to her bodily heirs begotten by him. The vital issue is whether this limitation, under the rule in Shelley's Case, vests in the wife, the taker of the life estate primarily, a fee-conditional, permitting her to lien or incumber the estate upon the birth of issue.
In my dissenting opinion, in the case of Strother v. Folk, 123 S.C. at page 146, 115 S.E., 605, I endeavored to analyze the rule. My convictions there expressed have not been changed; what I might now say would be a repetition of them, which is not at all necessary in view of the accessibility of the reported case. The gist of them is that, if the limitation, with its accompanying expressions and other expressions in the will, demonstrate that the parties intended as remaindermen constitute a class which take in their individual right, as the stock of a new inheritance and do not indicate an indefinite line of succession as heirs or heirs of the body of the designated life tenant, the rule does not apply. If they do not take as such heirs, but represent a class upon which the legal title in fee has been conferred by the will, to come into possession at the efflux of the preceding life estate, there is no necessity to resort to the legal legerdemain of the rule; they take by individual acquisition, independently of their relation to the life tenant, and not by heritable succession from him.
If a legal construction of the limitation demands the interpretation of indefinite succession, the intention of the donor is absolutely negligible; but if by any expression in the will, in a superadded clause or elsewhere, the question does not demand an arbitrary solution, but is open to inquiry, the intention so ascertained will, when so construed, annihilate the conception of indefinite succession and fix the interests of the remaindermen as direct donees of the testator's bounty, the stock of a new inheritance. That the superadded clause, or in fact any other portion of the will, may be resorted to for the purpose of ascertaining the intention of the grantor in this limited particular, is well established; not the intention of the testator as to how the estate should go, but as to the capacity in which the remaindermen should take, whether as heirs of the donee or as direct objects personally of the donor's bounty. See cases cited in the Strother v. Folk case, 123 S.C. at page 151, 115 S.E., 605.
In most of the cases bearing upon this question the inquiry is whether the words "heirs" or "heirs of the body," are used in their ordinary sense of "children" or as technical words indicating an indefinite succession. This of course in certain cases is an important and controlling issue, but it is not the only one; if it should be concluded that they were used in the ordinary sense indicated, it would be conclusive that a class to take in their own right as the stock of a new inheritance was provided for; but the same result would be attained if the words "heirs" or "heirs of the body" were not intended to mean "children," but were intended to constitute a class to take in similar manner.
As is said in Kale, Future Interests, 476: "Let it be understood then that when in this topic reference is made to `heirs' as a word of purchase reference is not made to the case where `heirs' is construed as meaning `children' or `issue' but to the case where `heirs' is used as a word to designate the person or persons who would be entitled to take by descent from the life tenant in case the life tenant died seized and possessed of a fee simple, such person or persons when thus designated to take as individuals because they answer that description."
Under either condition, I think that it is clear that the limitation of the remainder was intended to create such a class.
It seems impossible to translate the expression "bodily heirs by me" otherwise than as "children."
In Granger v. Granger, 147 Ind., 95, 44 N.E., 189, 190, 46 N.E., 80, 36 L.R.A., 186, 190, the Court said: "It is true that the words `heirs of his body,' standing by themselves, might mean any persons in the line of descent from Edwin, and who might, in law, be entitled to inherit from him — his issue generally. Certainly, however, the only ones of all such heirs that could be `by him begotten' would be his own natural-born children. A man cannot beget any one except his own children. He may have numerous heirs, but the only heirs begotten by him are his own sons and daughters. Nor can we ignore or pass over this expressive word. `To beget' is as strong a term as `child' itself. It is the act by which a child is brought into being. In a measure, the same relation exists between the word `beget' and the word `child' that does between the word `create' and the word `creation,' between cause and effect."
In McLure v. Young, 3 Rich. Eq., 559, at page 574, the Court said: "Language of the strictest technical import, as heirs of the body, will not control the construction if the intention be clearly manifested to describe thereby a class of persons to take at a particular period. In such case the intention will prevail. The rule only requires, says Mr. Jarman, a clear indication of intention to that effect."
In McLure v. Young, 3 Rich. Eq., 559, the devise was to the testator's "daughter C., for and during the term of her natural life; and at her death, I give, bequeath and devise the same, absolutely and forever, to her lineal descendants."
In Buist v. Dawes, 4 Rich Eq., 421, the syllabus is: "Devise of `the use' of lands `to J.P. for life; and, at his decease, the said lands shall be, and is hereby declared to be, vested in the male issue of the said J.P., and in default of such, in the issue female surviving him; and if a general failure should be at the decease of the said J.P., then, over — Held, that J.P. did not take a fee conditional in the lands."
In Duckett v. Butler, 67 S.C. 130, 45 S.E., 137, 138, the Court said: "When not in violation of some rule of law, the intention of the maker must prevail, and such intention should be ascertained from a consideration of the whole instrument. According to our decisions, it is always open to inquiry whether the grantor or testator used the words `heirs' according to its strict and proper acceptation, or in a more inaccurate sense to denote `children.' * * * Cases like Whitworth v. Stuckey, 1 Rich. Eq., 404; Bethea v. Bethea, 48 S.C. 440, 26 S.E., 716; Simms v. Buist, 52 S.C. 554, 30 S.E., 400, do not conflict with this view, for there was nothing in the instruments under consideration in these cases to show that such terms as `lawful issue of body,' `heirs of her bodys,' were used in a restricted sense, denoting children."
In the case of McWhite v. Roseman, 114 S.C. 177, 103 S.E., 586, this Court refused to treat the expression "bodily heirs" as an expression of limitation under the rule in Shelley's case, because in other parts of the will the language used by the testator indicated that he used the word "heirs" in the sense of "children," rather than in its technical aspect.
In the case of Rowe v. Moore, 89 S.C. 561, 72 S.E., 468, 470, there was a devise to one for life, with remainder to the heirs of her body. This well-defined expression of limitation, within the rule in Shelley's case, was, however, denied its technical signification, and because of other expressions in the will, was held to have been used in the sense of "children." The Court said: "It is true that the rule in Shelley's case is still binding authority in South Carolina, but when it appears that the words `heirs,' `heirs of the body,' or `issue' are so qualified by additional words in the will as to evince an intention that they are not to be taken as descriptive of an indefinite line of descent, but are used to indicate a new stock of inheritance, the rule in Shelley's case does not apply."
There are numerous other cases in South Carolina in which this Court has held that the expression "heirs," "heirs of the body," etc., are to be construed under the circumstances of the particular cases as if they read "children," among which are the following: Bailey v. Patterson, 3 Rich. Eq., 156; Moone v. Henderson, 4 Desaus., 459; Shaw v. Robinson, 42 S.C. 342, 20 S.E., 161; Hayne v. Irvine, 25 S.C. 289; Lott v. Thompson, 36 S.C. 38, 15 S.E., 278; McWhite v. Roseman, 114 S.C. 177, 103 S.E., 586; First Nat. Bank v. Hutson, 142 S.C. 239, 140 S.E., 596; Rembert v. Evans, 86 S.C. 445, 68 S.E., 659; Burton v. Burton, 113 S.C. 227, 102 S.E., 282.
The circumstances under which the testator was placed give strong indication that he intended his children by his third wife to be provided for as such and not as the heirs of the wife the life tenant. He had provided for the son of his first wife and for the grandson, the son of a deceased son of his second wife, without any limitations upon their titles, and it was natural that he should make some provision for his third wife and her children by him; he certainly did not intend, after limiting her interest to a life estate, to put it in her power to convey or incumber the land which he intended to go to his five children by her.
I think, therefore, that the decree appealed from should be modified as herein indicated.