
    O. N. Bowman vs. D. Lobe and others.
    
      Deed — Limitation of Estates.
    
    A., by deed, assumed to be valid as a covenant to stand seized to uses, conveyed certain tracts of land to his six sons by name “ during their nalural life,” and “if any of my sons die without an issue of the body,” remainder to the sons then living. He then by the same deed conveyed other lands to his four daughters for life, with remainder to the survivors, on the same contingency. And further, after reserving to himself a life-estate in all the lands, he directed that “at my death it,” meaning all the lands, “ shall be immediately transferred to my sons and daughters, as above mentioned, to their heirs or assigns.” B., one of the sons, survived A., and then died, without issue, leaving two of his brothers surviving him : Reld, that B.’s estate in the lands did not descend to his heirs, and therefore that his share could not be subjected to the claims of his creditors.
    BEFORE JOHNSON, OH., AT ORANGEBURG, JANUARY, 1867.
    The decree of his Honor, the Chancellor, is as follows:
    Johnson, Ch. On the 8th of January, 1827, George Bowman executed a deed  by which he conveyed the greater part of bis estate to his children, and by which he conveyed to his sons, David Bowman and John W. Bowman, during their natural lives, a tract of land containing sixteen hundred and twenty-four acres, which he had purchased from Samuel Funches, and another tract containing one hundred acres, which he had purchased from George Patrick. In the said deed, after donations were made to all his children for life, it is provided that if either of the sons of the donor should die without issue of the body, that the lands given to such sons should be divided among his other sons who should be living at the time; and near the close of the said deed,the donor reserves to himself “the right of using and keeping” this property “ during (his) my life,” “ and at (his) my death it should be immediately transferred to (his) my sons, as above mentioned, to their heirs or assigns.”
    After the death of the donor, David Bowman died intestate without leaving issue of his body living at the time of his death. He left as his heirs at law two brothers, lteddick A. and Lovic E. D. Bowman, and various children of his deceased brothers and sisters.
    The complainant, who is a nephew of the intestate, soon after his death, took out letters of administration upon his estate, and sold all the personal property, the proceeds of which, he alleges, are not sufficient for the payment of his debts. The bill states that D. Lobe has commenced suit against the complainant; and that the lands belonging to the estate of the intestate, which are made up of three several tracts, will have to be sold for the payment of the intestate’s debts. The bill prays that D. Lobe and other creditors may be enjoined from prosecuting suits at law for the collection of their claims, and that the lands of the intestate may be sold for the payment of debts. The defendants, Beddiclc A. and L. E. D. Bowman, in their answers', admit all the allegations of the bill, except that the tract of land therein described as containing five hundred acres, more or less, and bounded by lands of P. E. Dukes, Gabriel Dukes, E. Funches, and John P. Berry belongs to the estate of the intestate. This tract of land is the same that was conveyed in the said deed to the intestate; and his surviving brothers claim that by a proper construction of the said deed they are entitled to the same as remainder men. And that is the only question of controversy in the case.
    The other heirs at law of the intestate insist that the scheme of the deed is to give an immediate vested estate in the lands to his sons, with cross-remainders to each other in case of dying without issue in his (the donor’s) lifetime. But to all who survive him, an absolute estate in fee simple —the estates given saddled with his use during his life, as in the case of Ghaplin vs. Turner, 2 Eich. Eq. 136. And it is insisted that the arrangement of the different clauses of the deed strengthens this view of the case ; and that this construction would give validity to every portion of the deed.
    In the case of Ghaplin vs. Turner, the whole estate was to be divided upon the youngest of three grandsons arriving at the age of twenty-one years. In this case there is no provision made for any division even of lands which are given to more than one of the sons of the donor, and the tract of land given to George P. Bowman is given to him alone, and the remainder men in the second clause of the deed are all the surviving sons of the donor, and not those who can demand a division of a certain portion of the lands which are given to them directly, to take effect at the donor’s death.
    It is the opinion of the Court that the words, “ their heirs or assigns,” in the latter part of the deed, cannot be reconciled with the other portions of it, and must be rejected; and that David Bowman only took a life-estate in the said tract of land; and that Eoddick A. Bowman and Lovic E. D. Bowman, the surviving brothers, are entitled to take the same as remainder men, and it is so ordered and decreed. And it is also ordered and decreed that the parties be permitted to take further orders at the foot of this decree. And it is further ordered that the costs of these proceeding be paid out of the estate of the intestate.
    
      The complainant appealed, and now moved this Court to reverse the decree :
    Because a proper construction of the deed made by George Bowman on the 8th of January, 1827, shows that David Bowman was, at the time of his death, seized in the land in dispute of an estate in fee simple.
    
      Hutsons & Legare, for appellants.
    
      Simonton & Glover, contra.
    
      
       “ This indenture, made between George Bowman, of the District of Orangeburg, of the one part, and David Bowman, George P. Bowman, John Wesley Bowman, Reddick Asbury Bowman, Lovic Ephraim Darley Bowman, Sebastian Fletcher Bowman, of the other part, witnesseth that the said George Bowman, as well for and in consideration of the love and affection which he, the said George Bowman, hath and beareth unto the said David Bowman, George P. Bowman, John Wesley Bowman, Reddick Asbury Bowman, Lovic Ephraim Darley Bowman, Sebastian Fletcher Bowman, as also for the better maintenance and supports of them the said” (naming all the sons over) “ hath given, granted, aliened and confirmed, and by these presents doth give, grant, alien, enfeoff and confirm unto the said David Bowman, John Wesley Bowman, during their natural life, all that plantation or tracts of land containing sixteen hundred and twenty-four acres I purchased from Samuel Funches, and one hundred acres from George Patrick. David and John Wesley is to pay out of the land two hundred dollars to .Reddick and Lovic Ephraim Darley, Sebastian Fletcher, to be equally divided between the three. Hath give,” &c., using same words, “and by these presents doth,” &c. “unto the said George P. Bowman during his natural life, all that plantation or tracts of land containing two hundred and eighty acres I purchased from John King, and two hundred acres of the land 1 purchased from Jacob Ott, joining my son George’s land. Hath give, grant,” &c., (same words,) “unto the said Reddick Asbury Bowman, Lovic E. D. Bowman, Sebastian F. Bowman, during their natural life, all that plantation or tracts of land whereon I now reside, and all the agents lands and the lands I purchased from Jacob Ott, except the two hundred acres I give to George P. 1 desire that if any of my sons die without an issue of the body, the lands mentioned above to be equally divided among my sons above mentioned that are then living.
      “Hath give, grant,” &c., (same words) “unto the said Margaret Felder, Barba Shuler, Catharine Crum, during their natural life, all that plantation or tracts of land on Ridge bay. I give, &c., unto Clarissa Scott, during her natural life, all that plantation or tract of land I purchased from Joseph Bowman.
      “ I desire that if any of my daughters die without an issue of the body, the lands mentioned above to be equally divided among my daughters above mentioned that are then living.
      “I reserve to myself, however, the right of using and keeping this property during my life; and at my death, it shall be immediately transferred to my sons and daughters, as above mentioned, to their heirs or assigns. I hereby revoke all gifts of said property heretofore made, and hereby declare my firm intention not to make any other disposition to any other person but my sons, David, George, John, Red-dick, Lovic, Sebastian, and Margaret, Barba, Catharine, Clarissa, of the above named property.” Given under my hand and seal, &c., and signed and sealed in presence of four witnesses, 4th October, 1826.
      Proved 8th January, 1827. Recorded in office of Register M. C., Charleston, 26th February, 1867. In R. M. C. Orangeburg, 14th February 1846.
    
   The opinion of the Court was delivered by

Wakdlaw, A. J.

This is a contest between the cred. itors of David Bowman, on the one side, and his brothers, who survived him, on the other. It presents one of those puzzling questions which frequently arise in the construction of instruments, unskilfully drawn, yet stuffed with terms of art, in the construction of which the mind naturally struggles to give effect to what is believed to be the intention, notwithstanding technical rules to the contrary.

Although the instrument here sounds like a will, and was in fact a disposition of property designed to avail only after the donor’s death, yet it was irrevocable, was recorded soon after it was made, and has by all parties been, without question, treated as a deed. It is a deed which, according to the case of Chancellor vs. Windham, (1 Rich. 164,) and other cases decided in our Courts, must be considered a covenant to stand seized to uses, whereby a freehold may be limited to commence -in futuro; and it may be noticed in passing, that our Act of 1853, (12 Stat. 298,) which removes all difficulty as to the general words “ die without issue of the body,” extends to both deeds and wills. The indulgence respecting executory devises and untechnical words allowed to carry a fee simple, which has been accorded to wills is, however, denied to deeds.

An examination of the whole instrument, it is believed, will show that the intention of the donor was to divide his lands amongst his children, reserving to himself enjoyment thereof during his life, and separating his children into two classes according to sex; to give to each child enjoyment for life; and if he or she should die, leaving children, to let his or her heirs or assigns take his or her parcel; but if any of them died without leaving children, to require that the parcels of those so dying should pass to survivors— sons’ parcels to surviving sons, and daughters’ parcels to surviving daughters. The provision for survivorship upon contingency to take effect whenever the contingency might happen, was, I apprehend, the controlling idea of the instrument; for if the intention was merely to confer upon each child that might be living, at the donor’s death, a fee simple in the parcel allotted to him or her, and also in shares of the parcels of those that might have died in the donor’s lifetime — in effect to prevent lapse — much cumbrous phraseology might have been easily avoided by the use of a few simple words, which common sense would suggest even to the unskilled who undertake to become conveyancers.

If this instrument was a will, there would be no difficulty in carrying out the supposed purpose; but we must remember that by deed a fee cannot be mounted on a fee, nor a fee simple be created without words of inheritance. To simplify the case, let us look only to what concerns the sons. There is, first in the order of the time for enjoyment, a life-estate in the father; second, a life-estate to each son ; third, upon the death of a son without issue of his body, a life-estate in the'other sons then living — there being no words of inheritance, nor gift to the issue, and our cases forbidding implication of such gilt; fourth and last, this provision, at my death, it ” (the whole property conveyed by tbe deed shall) “be immediately transferred to my sons and daughters, as above mentioned, to their heirs or assigns.” When and to whom did the fee simple created by this final provision pass ? It passed immediately upon the death of the donor to every son and daughter in respect to his or her parcel, but was in each a vested remainder. “ As above mentioned” does not mean the sons and daughters above named; for, if so, they would have taken the whole property as tenants in common; but it means in such parcels and under such limitations as are above mentioned. There was then given to each son a life-estáte, with mediate remainder to his heirs, and thus, under the rule in Shelly’s case, the son, as ancestor, took both the life-estate and the fee simple; but the intermediate contingency prevented a merger of the life-estate in the fee. Upon the happening of the contingency — his death without issue of his body — ■ a deceased son’s fee simple passed to his surviving brothers, his fee simple opening to admit tbe limitation to survivors as it arose. (4 Kent Com. 210, § 59, Shep. Touch. 128, ch. 6.) There was not a fee mounted upon a fee, but a fee made subject to a contingency, whereby it was defeated. When by the rule in Shelly’s case the seeming inconsistency between the two grants, one for life and the other in fee, has been overcome, the only remaining question is whether the fee is absolute or conditional; and by the plain limitation to the sons that are “ then living,” that question is determined. That such contingent or conditional limitation may be made by deed, the authorities cited in the standard works, to which reference has just been made, will show.

If, however, it should be resolved that the construction here given to the first clause takes too much liberty with its words, the same result is reached, as the Chancellor reached it, by regarding the two clauses of the instrument as repugnant, and applying the rule that in a deed of two repugnant clauses, the first shall prevail. This rule we regard as one for final resort, when all reasonable modes of reconciling apparent repugnancy have failed ; and we think that here a construction may be adopted which gives effect to every part of the instrument.

For the creditors, who desire to establish in David Bowman, now deceased, an absolute fee simple which may be subject to their demands, reliance has been placed upon what is said to be a rule of construction, that “ where a gift is to take effect in possession immediately on testator’s death, words of survivorship refer to the date of’the testator’s death, and are intended to provide for the contingency of the death of the objects of his bounty in his lifetime, unless some other point of time be indicated by. the will.” Extending to this deed, designed for posthumous effect, the supposed rule, which hitherto has been confined to wills, and acknowledging the propriety of its application in Pressley vs. Davis, (7 Rich. 107,) we find that, even as there said, “if the enjoyment be postponed by the interposition of a particular intent, such as a life-estate, or by fixing a future period for division such as the attainment of the legatee to full age, the words of survivorship more naturally relate to the period of division and enjoyment.” Here a life-estate was interposed, a contingency specified, and a future period indicated by the words “ then living.” The survivorship then relates to the period when the enjoyment of the survivors was to begin — the death of the son who first took the parcel without issue of his body. Those who desire to see the history and present extent of the supposed rule, which the creditors invoke, may find the whole compressed into brief compass by Mr. Jarman. (Jarman on Wills, 450, 631, ch. 48, § 3.) There the steps by which a doctrine once established upon infirm reasoning, was overthrown, have been traced, the potency of a contingency exhibited, and the result attained that "the rule which reads a gift to survivors, simply as applying to objects living at the death of the testator, is confined to those cases in which there is no other period to which survivorship can be referred; and that when such gift is preceded by a life-estate or other prior interest, it takes effect in favor of those who survive the period of distribution, and to those only.”

This case does not involve any question between brothers and children of a pre-deceased brother, nor any concerning accruing shares, and no intimation of opinion upon any of those questions is intended to be made.

The decretal order of the Chancellor is affirmed.

Dunkin, C. J., concurred.

Inglis, A. J., absent at the hearing.

Decree affirmed.  