Dunlap v. Garlington

Citations

• 17 S.C. 567
• 1882 S.C. LEXIS 101

Syllabus

<p>Testator by liis will gave to trustees real and personal property “ in trust for the sole and separate use and benefit of my daughter N. and the lawful issue of her body ... to be and remain in the uninterrupted possession of my daughter N., and should my daughter die leaving no lawful issue of her bodjq it is my will and desire that the aforesaid property, both real and personal, revert back to my estate.” By a second clause, testator gave certain other real and personal property to his wife for life, “and at her death to be sold, and the money arising therefrom be equally divided among all my children, share and share alike, the grandchildren to represent the interest of their deceased parent, and that portion which may be coming to such child, whose interest is secured in trust, I hereby direct my executors to pay over the same to their trustee.” The property given to the widow was sold after her death, and N’s share was received by her trustee, including two notes on one G. This was prior to 1868. Afterwards N’s husband purchased a house and lot from G., and paid for it by a credit on one of these notes, and he then gave this house and lot to his daughter ' E., and then N. died intestate.. Held,</p> <p>1. That E. was entitled to the house and lot, and that the balance due on the two notes passed to the husband and children of N., as her distributees, and not to the heirs of her body.</p> <p>2. The real estate sold under,the directions of the will must be regarded as personalty.</p> <p>3. This property disposed of by the second clause was not governed by the terms of the first clause, and even if it were, the words used are not sufficient to create a life estate only in N. or even an estate over which her husband could-have no control.</p>