10317

#### WREN *ET AL.*v. McCAY *ET AL.*

(102 S. E. 9.)

Wills — Devise to Whichever Child Supports Idiot Son Held to Go to Particular Son's Estate. — Under a will devising certain plantations and interest for the support of testator’s idiot son for his life, with remainder over “to whichever of my children shall take kind care of my said son * * * and provide for him until his decease,” where another son of testator, assisted by the widow, took care of the idiot son for 13 years, or until his death, and then turned over the charge to his wife and daughter, who took care of the idiot son for 9 more years, until he became dangerous and was committed to a hospital, where he died in a few weeks, the estate of the son who took care of the idiot is entitled to the entire remainder.

Before Townsend, J., Berkeley, Spring' term, 1918.

Reversed.

Action by Ella G. Wren and others against Margaret R. McCay and others. From judgment for plaintiffs, defendants appeal.

*Messrs. L. D. Jennings*and *A. S. Harby,*for appellants,

cite: *As to estoppel:*10 R. C. L. 689; 12 S. C. 314; 22 S. C. 123 (2 Phill.); 141 Iowa 285; 119 N. W. 702; 133 A. S. R. 170; Cooley on Torts (2d Ed.), latter part sec. 569; 41 Conn. 197; 30 Iowa 423; 36 Iowa 125; 14 Am. Rep. 505; 81 S. C. 329; 95 S. C. 328. *As to the rule in the exception of wills:*31 U. S. 68; 8 Raw Ed. 322; 28 U. S. 346; 7 Raw Ed. 701; 26 S. C. 564; 28 S. C. 325; 1 Hill’s Chan. 56 and 63 S. C. 474 (cited and differentiated from case at bar). *As to the rule in determining whether there has been a performance or breach of a condition precedent or of a condition subequent:*40 Cyc. 1717; 37 Barb. 496; William on Executors 1376; 19 S. C. 184; 1 Story Eq. 291; 9 S. C. 213 ; 27 R. R. A. (N. S.) 684 (footnote); 12 Ky. R. Rep. 827; 15 S. W. 511; 118 N. C. 422; — S. E. 751; 26 S. C. 47R and 1 Hill 56, have no application to the case at bar.

*241*Messrs. Wolfe & Berry*and *B. J. ‘Dennis,*for respondénts,

cite: *As to what is a contingent remainder:*10 S. C. 387; 10 S. C. 398. *This is not a vested remainder:*10 S. C. 387. *Not a fee defeasible:*102 S. C. 243. *Courts favor a construction rendering the estate a remainder instead of an executory devise or limitation:*24 A. & E. Encyc. E. (2d Ed.) 429. *This is not an executory devise or limitation:*16 S. C. 170; 2 Minor Inst. 369; Fearne on Remainders 385; 16 S. C. 325; 24 A. & E. Ency. L. (2d Ed.) 430; 24 A. & E. Ency. E. (2d Ed.) 428-9. *The contingent remainder here is not transmissible:*26 S. C. 471. *By the terms of the will none were or could be trusted with the “kind care” of Lawrence, but a “child” of the testator:*28 S. C. 326; 1 Hill Ch. (10 S. C. Eq.) 56; 17 Ill. (7 Peck) 59-61. *Both conditions must be fully performed before the devisee may take:*50 S. C. 488; 28 S. C. 326; 2 Bl. Com. 157. *This is a condition precedent:*28 S. C. 331. *The devise is void for uncertainty:*28 S. C. 326; Jarman on Wills (5 Am. Ed. 1880), pp. 661-2; 26 S. C. 470; 4 Kent Com. 125. *Precedent conditions must be literally performed:*4 Kent Com. 125; 2 Bro. G. C. 431-460; Full Eng. Reprint 255; 16 Wall. (U. S.) 206; 33 N. J. R. 499; Underhill on Wills, pp. 637-644; 16 Wall. (U. S.) 206; 26 S. C. 470; Jarman on Wills (5 Am. Ed.) 520. *The condition to kindly take care of Lawrence was to be personally performed by one of the testator’s*children, *and could not be performed by his heirs or personal representatives:*28 S. C. 326. *The contingent interest of Thomas was not transmissible to his heirs or personal representative:*26 S. C. 470. *The contingent remainder having*failed, *then the estate reverted to the estate of the testator and passes under the residuary clause of his will:*109 S. C. 439. *The increase of the residuary estate by accident is permissible %mder the rules of law:*91 S. C. 103. *In order to take under the*devise, *the taker must be a child of the*testator, *and must have fulfilled the condition precedent by taking kindly care of Lawrence until his decease:**24263 S. C. 474-490; Ricíi. Eq. Cas. 321-323; 19 S. C. 181. *There could be no estoppel here:*81 S. C. 331-2; 67 S. C. 449, *et seq.*

January 26, 1920.

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an action for partition and accounting. The clefendants-appellants set up title in • themselves, and that question alone is before the Court on this appeal, because, if the appellants have title, there need be no accounting,

The question (only one need be considered) raised is purely a question of law, and arises out of the following provision of the will of C. G. McCay:

> “I give, devise and bequeath my plantations in Saint James Santee, known as the Manigault Tract and the Poplar Grove Tract, and the interest on the sum of two thousand dollars (which amount I hereby direct my executors, or such of them as shall qualify, to raise out of my estate and to securely invest), for the support and maintenance of my son, Lawrence, for and during the term of his natural life; and from and after his decease, I give and devise the said tracts of land and the said capital sum of two thousand dollars, in whatever invested, to whichever of my children shall take kind care of my said son, Lawrence, and provide for him until his decease.”

We find this statement of facts in respondent’s argument:

> “C. G. McCay, the father, died in 1879. His wife, Frances C., died in 1892.

> “The two executors of the will, the two sons, Thomas A. and Augustus William, died in 1905 and 1904, respectively.

> “Lawrence, the imbecile son, died in 1914. From the death of his father in 1879 Lawrence continued to reside with his mother, Frances C., in the old home until she died in 1892; and, of course, she necessarily attended his personal wants during that period. From the death of his father in *2431879 until the death of the mother in 1892, Thomas A. took charge of and attended to the business affairs of Lawrence. When the mother died in 1892 Thomas A. took Lawrence to his house, and cared for him and his property until said Thomas A. died, in 1905.

> “When said Thomas A. died in 1905, said Lawrence continued to live in the same house with Mrs. Margaret R. McCay and Mrs. Annie E. Andrews, the widow and daughter, respectively, of said Thomas A., who cared for him and took charge of his property interests until the 21st day of December, 1913, when they had him committed to the asylum as a pauper or beneficiary patient, where said Lawrence died in about six weeks, namely, on January 21, .1914.

> “No child of the testator cared for Lawrence, save Thomas A., who died in 1905, 9 years prior to the death of Lawrence.

> “Upon the death of Lawrence, the defendants, Margaret R. McCay and Annie E. Andrews, wife and daughter, respectively, of Thomas- A. McCay, took possession of the property of Lawrence McCay, claiming it as owners thereof under the will of the testator, C. G. McCay,

> “This suit now seeks the partition of this property among and between the four children of the testator, C. G. McCay, or their descendants, under the residuary clause of his will.”

> The record further contains statements that “Lawrence McCay had been an imbecile since birth, that he was a mute, and that he could understand a little, but had to be helped in every way, and could not dress himself alone, and that in recent years he had become dangerous, and would chase women and children.”

Lawrence was admitted to the State Hospital as a pauper, and it was not contradicted that Mrs. Andrews had written to the authorities that she was willing to pay his expenses. Lawrence died about four weeks after he reached the hospital.

*244Thomas A. McCay left a will in which he provided:

> “I direct my executors, or such of them as may qualify upon this will and testament, to raise out of my personal property a fund of $3,100 which they are hereby instructed to invest and hold in trust for the use of my brother, Lawrence, during his natural life, and, at his death, to be disposed of in accordance with the provisions of the will of my father, the late C. G. McCay, as to Lawrence’s share in his estate.”

The widow and daughter of Thomas A. McCay claimed that Thomas A. McCay had performed the conditions of this will of his father, and that they are entitled as his heirs at law to property devised and bequeathed for the support of Lawrence.

The trial Judge held that Thomas had not performed the conditions, in that the will of his father required, as a condition precedent to the investing of the remainder, the personal care of one of the testator’s children, and that the care of the daughter-in-law and grandchild do not fulfill the condition. He held that, the condition was not fulfilled, since Thomas died before Lawrence. He realized that the case was a hard one, and, while he ordered an accounting, allowed to the estate of Thomas reasonable compensation for the trouble and care bestowed upon Lawrence. It is indeed a hard case if Thomas, who cared for, and it is stated and not denied, kindly cared for, assisted by his mother during her life, and kindly cared for him in his own home for 13 years, and then at his death turned over his trust to his wife and daughter, who carried the burden for some 9 years more, shall be deprived of the pecuniary compensation so justly offered by his father. It is also a hard case if those brothers and sisters and their families, who1 in all these years had never raised their hands to help their unfortunate brother, shall now come in and get the property. The temptation is that in doing a “great right” we might feel excusable in doing a “little wrong,” but we must not forget that hard *245cases too often make bad precedent, and thereby great confusion creeps into the law. The law in this case is very clear, and we have no authority to change it. In *Whitesides v.*Whitesides, 28 S. C. 331, 5 S. E. 818, we read:

> “It will be observed that this is not the case of a devise tc some specified person upon condition in which the question whether the condition is precedent or subsequent is oftentimes difficult to determine; but it is a case of a devise to an unascertained or uncertain person, where' the uncertainty can only be removed by a compliance with the condition prescribed. So that here the condition is necessarily precedent. No one of the sons of Thomas Whitesides can claim under this devise until he has complied with the prescribed condition, for in that way alone has the testator designated which one of the sons was to take.”

The law is'clear and inexorable. If Thomas did not “take kind care of my son, Lawrence, and provide for him until his death,” then neither Thomas nor his estate is entitled to the remainder.

If the duty of taking care of Lawrence had been committed by the will to Thomas alone, then there might be much force in the position that he could not delegate the duties to any one, but the devise is to a class. A strict construction of the word “children,” of course, means the immediate offspring of the testator. That construction here would destroy, and was likely to destroy, the whole object of the provision for this most unfortunate son. Can it be supposed that the testator intended to send Lawrence adrift in case of the death of that child who first assumed the duty? The devise was not to Thomas, but to “whichever of my children.” The purpose manifestly was to provide that the case of this idiotic and unlovable son should be committed to a member of the family, and not to strangers. Thomas turned over his burden to his wife and daughter, who had learned by long and hard experience to take kindly care of the unfortunate. There is no question but that the kindly *246care was bestowed by them, even when they committed him to the hospital for the insane. It is true that the widow and daughter took an active part in committing him to safe custody, but there was kindly care even then, and his Honor so finds.

Besides this, Thomas provided for kindly care after his own death by setting aside $3,100 of his own money for the maintenance and support of Lawrence, and with kindly care provided that that sum should, at the death of Lawrence, be added to the fund provided for Lawrence, under his father’s will, and go to him who gave kindly care to Lawrence. Thomas gave kindly care to Lawrence while he lived, and gave kindly care to Lawrence until he (Lawrence) died. Thomas was a child of C. G. McCay, and gave kindly care to Lawrence until he died, thus literally performed the condition precedent, and the estate of Thomas is entitled to the entire fund provided by G G. and Thomas McCay. It is claimed that kindly care requires personal service, *i. e.,*that Thomas must dress and wait on Lawrence with his own hands. The will does not say so. The case of *Cabeen v. Gordon,*1 Hill Eq., p. 56, is relied upon as authority. This case does not sustain the position. The testator gave certain slaves to his daughter, Betsy, “but if my daughter, Mary, shall take care of said Betsy during her life, then at her death I give said slaves to the said Mary.” The Court goes on to say, “For one cannot be said to be taken care of, who is waited on with great care, but who is neither fed nor clothed; nor can one be taken care of, who is unable to feed herself, or put on her clothes, by placing before her food and raiment.” Mary did not care for Betsy, and was not entitled to the remainder. It is manifest that the personal care provided for was care personal to Betsy, but supplied by Mary. Parents take kindly care of their injured child when they take it to a good hospital and commit it to the ministrations of skilled physicians and competent trained nurses, even though neither of them touch, or are allowed to *247touch, the child while it is in a critical condition. The mother may long to do the service herself. Sometimes she is most kindly when she restrains her natural impulse for the good of the child. It is undisputed that Lawrence received kindly care to the day of his death, and that this kindly care was provided by Thomas McCay, and his estate is entitled to the entire remainder.

The judgment is reversed.