Mendenhall v. Mower

Citations

• 16 S.C. 303
• 1881 S.C. LEXIS 157

Syllabus

<p>1. The rules governing limitations in wills, deeds and other instruments are now generally the same, whether the property affected be real or personal.</p> <p>2. Some differences between limitations in a deed and will, stated.</p> <p>3. The effect of a limitation to issue in a deed, and whether confined to the issue living when the particular estate determines, depend upon the intent of the grantor to be gathered from the whole instrument.</p> <p>4. The word issue may describe (1) a class of persons to take as joint-tenants with other parties named; or (2) a class who are to take at a definite period as purchasers; or (3) an indefinite succession of lineal descendants who are to take by inheritance.</p> <p>5. Where there is a direct gift to the issue in the first instance with a limitation over, on the death of the first takers without lawful issue, to the survivor of such takers who, at the death of testator, are persons in esse, and there is no further limitation to issue, the first takers hold for life, the limitation over not being too remote; and in the absence of words showing an intention that the survivor shall take a transmissible interest, the presumption will he that he is to take personally.</p> <p>6. Hence, where a purchaser of real property (which was sold under execution against D.) made a declaration of trust in 1847, that after the repayment to him of the purchase-money, he would hold the property in trust “for the use of A. (wife of D.) for life, and after her death for the use of B. and 0., and their respective issue, or the survivor of them (the said B. and C.), if either of them should die without issue, and if both should die without issue, then for the use of D.,” &c. — neither B. nor C. then having issue. Held, that B. and O. took a life-estate, after the death of A., with remainder to their respective issue as purchasers.</p> <p>7. Under proceedings had in the Court of Equity, subsequent to the act of 1853 (12 Stat. 262), a portion of thi