#### SAMUEL G. LAWTON v. THE UNITED STATES.

No. 13419

May 21, 1883.

The claimant’s grandfather, by will, in 1827, devised a tract of land in South Carolina to trustees for the benefit of his daughter, the claimant’s mother, during her natual life, and npon her death, if she had lawful issue surviving her, then to said issue in fee. During the lifetime, of the mother the tract was sold by direct-tax commissioners for non-payment of a tax due to the United States. The property was bid in by the United States for a sum greater than the aggregate of the tax, penalty, interest, and all costs and charges, but no money was paid. No demand wa.s made on the Treasury for the surplus during the tenancy for life. On the death of the testator’s daughter the claimant, being the sole surviving lawful issue of the daughter, demanded it.

Held:

I. Under the provisions of the *Act of Avgust*5,1861, eh. 45 (12 Stat. L., 292), the surplus of the amount bid by the United States at the purchase of land at a tax sale, over and above the taxes and costs, can be recovered by the owner of the property.

II. The executors of the will as trustees were created tenants for the life of the testator’s daughter, with remainder over to such of her lawful issue as should be living at the time of her death; and the claimant was such issue.

HI. The right to the surplus followed the disposition of the land and vested in the claimant.

IV. The statute of limitations does not begin to run against a claim for the surplus of such tax sale until demand has been made at the Treasury by the owner, and payment has been refused.

*596The following are the facts found by court:

I. On the 10th clay of February, 1827, James Stoney, of Hilton Head Island, in South Carolina, died leaving a last will and testament, which was duly proved and of which the following is an extract:

The other equal part or share of my personal property, charged and chargeable with the payment of half of the said annuity to my beloved wife Elizabeth, together with all of the lands I possess on the south side of Broad Creek on the Island of Hilton Head, I give and devise unto such person or persons as I shall hereafter appoint my executor or executors, to and to the use of them or him my executor or executors, their heirs, executors, & assigns, upon the trust nevertheless, and to & for the intent & purpose hereinafter expressed and declared of and concerning the same. That'is to say, upon trust for tile sole benefit of my beloved daughter Martha S. Barks-dale, for and during her natural life, free, and free from the debts, contracts, and engagements of any husband to whom she may he allied, or the intentions or claims of his creditors; and upon the death of my said daughter Martha S. Barksdale, it is my will, intention and desire that the trusteeship above created in executor or executors over the said part of my real and personal property shall immediately dissolve and expire; and if my said daughter Martha S. Barksdale shall have any lawful issue living at the time of her death, then I give and devise the said part of my real and personal property to such issue, him, her, or them and their heirs forever.

A tract of land known as tbe Hill Place, in Saint Luke’s Parish, South Carolina, was a part of the estate so devised.

• II. The said Martha S. Barksdale, named in said will, entered into possession of said last-named tract of land under said devise, and continued in possession of the same until dispossessed thereof by the tax sale hereinafter set forth. After the making of the said will she was lawfully married to one Joseph A. Lawton. The claimant, Samuel G-. Lawton, who is now forty-one years of age, is the lawful and only living issue of the said Martha S. Barksdale.

III. On the 25th day of November, 1862, the direet-tax commissioners of the United States assessed a direct tax upon the said Hill place amounting to $88. On the 1st day o'f December, 1873, the said Hill place was sold for non-payment of the said tax. The amount of the taxes, penalty, interest, and costs was $170.50. The property was struck off for the United States by the tax commissioners for the sum of $1,100, and tax certificate No. 207 was issued therefor, and is now on file in the office of the Commissioner of Internal Revenue, but no money was iiaid *597therefor, the tax commissioner having bid in the property for the United States.

IV.. The board of tax commissioners entered upon and took possession of the land in. the name of the United States, and from time to time leased the same. The amount realized from such leasing does not appear. The United States are still in possession of fifty acres; the remainder was sold at public sale on the 31st December, 1875, for $130, under the provisions of. the Act of June 8,1872. No application under the Act of 1872, and the supplements thereto, for redemption of this property was ever made.

V. It does not appear that the claimant ever parted with his interest in the remainder in said tract, except as dispossessed by said tax sale, or that he ever assigned his right to receive the surplus remaining from the purchase money.

VI. The-said Martha S. Lawton died on the 12th day of April, 1880. It does not appear that during her lifetime any demand was made rypon the Treasury for.the said surplus. On the 8th day of May, 1882, the claimant applied to the Secretary of the Treasury for any surplus proceeds of said sale which might be in the Treasury, and no action was taken thereon; and nothing has been paid to the claimant on such application.

*Mr. William JE. liarle*for the claimant': ,

The claimant is the son, of Mrs. Martha S. Lawton, who was Martha S. Barksdale, the daughter of the testator, James Stoney, and was her only “lawful issue living at the time of her death.” [The devise is set out in the first finding.]

The question is, whether he can. maintain his claim, on this title, to the surplus proceeds of the sale of this land?

1. The proceeds will go as the land would have gone if it had not been sold. ' . ‘ .

The realty having been converted into money by the sale, it is regarded in law as if in fact it was realty.

The Whole tenor of the decisions in South Carolina prior to the Act of 1853, as well as that act and the decisions made since its enactment, disregard the general distinction between real and personal estate as affected by limitations.

2. This devise does not come within the rule in *Shelley’s Case ■*(1 Coke, 93).

*598Had tlie devise been to M. S. Barksdale for life, with remainder to her lawful issue, these words “lawful issue” would be construed as words of limitation.

“Issue” is a very comprehensive term, and its meaning is varied by the use of terms used in connection with it. It sometimes describes a class who take as joint tenants with others named; again, another class who are to take at a definite and fixed time as *purchasers;*and it may denote an indefinite succession of lineal descendants who are to take by inheritance.

It is material, therefore, to consider whether the time fixed for the limitation to take *effect is*the death of the first taker. If the limitation be by deed, and the time fixed is the death of the first taker, unless the context clearly shows an intention to eoiivey a fee to the first taker, the remainder will be good. But if the first taker is granted the fee, there is nothing left, of course.

A. devise would be different, for a fee limited upon a fee is good as an executory devise, provided it be limited to a life or lives in being and twenty-one years and the period of gestation thereafter. The first fee is defeated by the happening of the named contingency.

3. I maintain, therefore, that the “lawful issue” here was to take at a definite and fixed time; that on the birth of the claimant he took a vested remainder; that his estate had the present capacity to take effect upon the falling in of the precedent life estate; and that he took as a purchaser, and not by inheritance.

That George M. Stoney, the sou of the testator, had a fee limited upon a fee which depended upon the happening of the contingency, “if my said daughter, Martha S. Barksdale, shall have any lawful issue living at the time of her death.” If she had left no lawful issue living, thé limitation to George M. Stoney would have been good as an executory devise.

I submit that this view accords with the intention of the testator to be gathered from his tbstament, which, it has been well said, “is the first and real object of inquiry in the construction of a will.”

The testator had provided amply for the widow, who was already advanced in years. He had but two children, a son married and settled in life, anda daughter comparatively young, and yet a widow, but without child. Whilst he desired to provide for her, he did not wish it to go to some unknown person *599wbom sbe might marry in case she. left no child, in preference to its going- to his son. Again, he did not intend.that it might go to the creditors or be lost by the mismanagement of some unknown possible husband, so the portion intended for his daughter, Martha S., was left for *her life*in trust to his executors and their heirs, executors, and assigns. Upon her death this trust‘‘shall immediately dissolve, and expire”; then the property, real and personal, devised and bequeathed to Martha S. should go to such issue, if she'“have any lawful issue living at thé time of her death”; but if she had not, the remainder went over to George M. Stoney, &ci

She, however, had “ lawful issue living” when she died, and then the trust to the executors, which had been created to protect her life estate, “ dissolved and expired,” and the lawful issue took, as I submit, *per forma doni,*and not by descent.

If this is true, then upon the death of his mother the claimant’s right to the money here claimed became his absolutely, as the original owner, upon the death of his mother.

The propositions herein submitted are' rested upon the following authorities:

Bequest of personalty to testator’s daughter, to her and the lawful issue of her body, forever; but if any of testator’s sons or daughters die without leaving lawful issue of their bodies alive, then their part-to be equally divided amongst testator’s *then surviving*children.

Where there is an express gift to issue, generally, a limitation over, in the event of the first taker?s dying without leaving-issue living at his death, will confine thé gift to such as are living at that time, and entitle' them to take as purchasers. *{Henry & Tolbird*v. *Archer,*Bailey, E., 535.)

Devise of real and *personal*property to the children of testator, bu-t “should any of them die without lawful heirs of their own body (lawful issue), their part or division of the estate to be equally divided between the surviving- children, share and share alike.” Held, that the indefinite failure of heirs of the body was controlled by the limitation to the survivors; and the devise was good, both as to the real and the personal estate. *{He Treville*v. *Ellis,*Bailey, 40; *McGorlde'V. Bladeetal.,*7E. B, 407.)

Testator bequeathed personally toliis daughter, “to her and the heirs of her body; but should she die-with out lawful issue, *600then to go back and be equally divided amongst the survivors” of the testator’s children. The limitation over was held good as an executory devise. *(Stevens*v. *Patterson,*Bailey, 42; B. S. of S. C., p. 443, § 10; *Mendenhall*v. *Moiver,*16 S. O. B., 303.)

*Mr. John S. Blair*(with whom was *Mr. Thomas Simons,*Assistant Attorney-General) for the defendants:

To enable claimant to come into court at this late day the existence of some trust mhst be shown; he cannot rely .on an action for money had and received to his use.

Section 36 of the *Act of*1861, ch. 45 (12 Stat. L., 304), does not apply, because, in the language of Woods, J., “in case the United States became the buyer there was of course no surplus.” (104 U. S. B., 219;) If it otherwise did apply, the twelfth section of the Act of 1862 is so inconsistent therewith as to work its repeal.

It is abundantly manifest from all the legislation that follows the ninth section of the Act of 1862 that it never was in the mind of Congress to pay to the owner of land struck off under that section either the difference between the total of tax, penalty, and interest and the sum for wThich the property was bid off, or-the proceeds of the leasing and ultimate sale. *(Act of June*7, 1862, §§ 11,12,12 Stat. L.* 422; *Act- of July*16, 1866, §§ 6, 7, 8, 9,14 Stat. L., 173.)

OPINION.

Davis, J.,

delivered the following opinion of the court:

In *Irene Taylor’s Administrator's Case*(14 C. Cls. R., 339) we decided that when a sale of real estate was made by direct-tax commissioners to a third party, for non-payment of a tax due to the United States under th *o Act of-June*7, 1862 (12 Stat. L., 422), and a surplus of the purchase money remained after satisfaction of the tax and all costs and charges, and that surplus was paid into the Treasury, the owner of the real estate, or his legal representatives, could demand the same of the Secretary of the Treasury under the provisions of the *Act of August*5, 1861 (12 Stat. L., 292); and that if payment should be refused, an action could be maintained therefor in this court, as upon an implied contract to pay it over to such owner or representative. ■

*601We also beld that under the Act of 1861 the statute of limitations did not begin to run against the owner of such surplus, or hjs representatives, until demand made at the Treasury for it and refusal to pay.

On both these points the Supreme Court on appeal sustained this court. *(United States*v. *Taylor,*104 U. S. R., 216.)

The present case differs from *Taylor’s Case*in this: that the real estate was bought in by the tax commissioners for the United States and no actual money was paid.

In their opinion in *Taylor’s Case*the Supreme Court said:

> The commissioners, in case of the non-payinent of the tax, penalty., and charges, were required to sell the lands at public sale to the highest bidder for a sum not less than the amount of the tax, penalty, &c., and, if no person bid more, then to strike oif and sell them to the United States for that sum. In case the United States became the buyer, there was, of course, no surplus.

In consequence of this expression, the Government contends that the Supreme Court holds that in case of a purchase by the United States there can in no event be a surplus to be paid to the owner or to go into the Treasury.

If this be so, it disposes of this case. But an examination of the language of the Supreme Court, and of the terms of the seventh section of the Act of 1862, to which it refers, shows that that court, in saying that there would be no surplus in case of a purchase by the United States, referred only to a sale under the provisions of the seventh section. Those provisions are as follows:

> And the said commissioners shall, at said sale, strike off the same to the United States at that sum (i. *e.,*a sum not less than the taxes, penalty, and costs, and cen per centum per annum interest on said tax) unless some Iverson shall bid the same or a larger sum.

It is mathematically true that there -can be no surplus for the owner when the property sells for just the taxes, penalty, interest, and costs for which it is responsible; and that is all the Supreme Court say in Taylor’s Case.

In the present case, however, the property sold for $929.50 surplus above the sum of the taxes, penalty, costs, and interest on the tax, but no money was paid.

The Act of 1862, under which the sale was made, contained no authority for a purchase by the United States except the one cited above; and as the purchase was not made under that authority, but under the authority derived from the *Act of Feb**602*ruary 6.1863 (12*Stat. L., 640), it follows that the United States became a general competitor at the vendue, like any other bidder, and obtained the property as such. We think this fact imposed upon the Government the same obligations and duties towards the owner which it would have- incurred had the property been struck off to a stranger.

Had a stranger been the purchaser, the United States would have been bound, out of the money received from the sale, to satisfy the tax, costs, penalty, and interest, and then to pay the surplus to the owner or his legal representatives; or if he or they could not be found, or should refuse to receive the same, then to pay it into the Treasury. As they were themselves the purchasers, their officers did not go through the form of paying the money; but their books ought to show and one of their courts ought, in common justice, to assume that their books do show that they acquired this property by the use of money taken from their Treasury and applied partly to the payment of their own taxes, penalty, and interest, partly to the expenses of collecting the amounts due them, and that the remainder is held by them as custodians for the persons lawfully entitled to demand it as owners of the property sold. It was made the 'duty of the defendants’ officers to do this. In the absence of proof to the contrary, it is a legal presumption that they performed their duty. *(Crussell’s Case,*7 C. Cls. R., 276.)

In Taylor’s Case the Supreme Court say of these acts:

> The act provided for the collection of direct taxes in insurrectionary districts. It was not a confiscation act. * * * A construction consistent with good faith should be given to these statutes. It would certainly not be fair dealing for the Government to say to the owneT that the surplus proceeds should be held in the Treasury for an indefinite period for his use or that of his legal-representatives, and then, upon suit brought to recover them, to plead in bar that the demand therefor had not been made within six years.

Similar equitable considerations are applicable to the present case. It would be inequitable to hold that the officers of the United States can, by over bidding- strangers at the sale, prevent the owner from receiving the surplus to which he would otherwise be clearly entitled under the statute.

The counsel for the defendants further calls attention to the fact that the Government took possession of these lands in that part of South Carolina and leased a part of them, and sold all but fifty acres of the tract now in question.

*603This was in part done by the authority conferred by Congress fn the elevt nth section of the Act of 1862; and this court has already held, in Taylor’s Case, and the Supreme Court has sustained us, that proceedings under section 7 are not affected by the subsequent grants of power in sections 9, 10, 11, and 12. The tax sale which is now under consideration, and others like it, were considered by Congress in 1866. Any defects there may have been in the proceedings for want of power were then cured. All steps outside of previous statutes were Tatified by the *Act of July*16, 1866 (14 Stat. L., 173). The sixth section of this act recites that those properties in the parishes of Saint Helena and Saint Luke had been bid in by the United States at tax-sales, and approves the setting' apart ■of certain portions of the same by the .tax commissioners for the benefit of the freedmen. That section and the remaining ■sections of the act further make provision for disposing of the remainder of these lands. This removes any doubt there may ■have been as to the power of the tax commissioners to bid in the property at the sale at a price above the tax, penalty, interest, and costs, and fixes, if it had not been fixed before, the liability of the defendants, under the Act of 1861, to account -for the surplus. ' -

The claimant has made his demand at the Treasury in due form for this surplus, and has been refused. It only remains to consider whether he is the person entitled to the money.

The claimant’s grandfather died in 1827, leaving a will by •which he devised, among other property, the said tract (in the language of the will)—

> Unto such person or persons as I sliallhereafter appoint my executor or «executors to and to tlie use of them or him my executor or executors, their heirs, executors, &assigns, upon the trust nevertheless, and to & for the indent & purpose hereinafter expressed and declared of and concerning the ■same. That is to say, upon trust for the sole benefit of my beloved ■daughter, Martha S. Barksdale, for and during.her natural life, free, and free from debts, contracts, and engagements of any husband to whom she may be allied, or the intentions or claims of his creditors; and upon the death of my said daughter Martha S. Barksdale, it is my will, intention, and desire that the trusteeship above created in executor or executors over the said part of my real and personal property shall immediately dissolve and expire; and if my said daughter Martha S. Barksdale shall have any lawful issue living at the time of her death, then I give and devise the said part of my 3?eal and personal property to such issue, him, .her, or them and their heirs iforever.

*604The said Martha S. Barksdale was the mother of the claimant. She died in 1880, leaving the claimant her sole surviving lawful issue at the time of her death.

In our opinion the executors of the will as trustees were created tenants for the life of Mrs. Lawton, with the remainder over to such of her lawful issue as should be living at the time of her death *(Mendenhall*v. *Mower,*16 S. C. R., 303; *Reeder*v. *Spearman,*6 Rich. Eq., 88; *McCorkle*v. *Black,*7 ibid., 407); the right to the surplus followed the disposition of the land; and, the trustees having failed to demand it during the term of the life estate, the claimant as remainder-man is entitled, to it.

The judgment of the court is that the claimant do have andl recover of the defendants the sum of nine hundred and twenty-nine dollars and fifty cents.