Durant v. Nash

Citations

• 30 S.C. 184
• 9 S.E. 19
• 1889 S.C. LEXIS 90

Syllabus

<p>1. The proper construction of a will depends upon the intention of testator, reached through the language used in the will, read in the light of surrounding circumstances, with a careful consideration of all its parts, so that it shall stand together as a whole, if possible.</p> <p>2. A devise was to testator’s widow and all of his children, share and share alike, the widow’s portion to be hers for life and at her death then to return to his surviving child or children or their legal issue; but if no child or children or their issue, then the widow’s portion should go over. Held, as to the widow’s portion, that it was given to her for life, with a contingent remainder in fee, first to testator’s surviving children ; and there being but one child, and no other issue, living at the widow’s death, her portion vested absolutely in that child.</p> <p>3. As to the children’s portions, the will directed that the portion of one who died leaving no issue should be equally divided between testator’s surviving child or children or their legal issue, and if all his children should die, leaving no legal issue, then over, the property to be kept together until one of his children arrived of age or married, and then divided. Held, that all the children who survived testator took a defeasible fee, subject to be defeated upon their dying without issue, before the period for division fixed in the will; and only two children having survived testator, one of whom died in early infancy, the other, on attaining his majority, took an indefeasible fee in the portion given to the children.</p> <p>4. The word “surviving” interpreted, in favor of an early vesting in the primary objects of testator’s bounty — his own children — to refer to the time fixed for division.</p>