The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1889-06-19
THE WILL OF R. c. GORDON.
JUDGE FRASER RENDERS JUDGMENT IN
REFERENCE THERETO.
He Makes Division of the Large
Estatc..NearIy all the Claimants
Get u Share.

THE STATE OF SOUTfi taho-lSh h'Dr. ~
vILLECouNTY-ln The Court OF Common
Pleas.
lane l.. Gordon. rs Adm'X of Robert T. Cor
don. and in her own right. Plaintiff
against Mary w. Gordon, W. Harvey Will
sop. Georgia &. Miller, and others, legatees
and devisees OF Robert c. Gordon, Defend
ants,
This case was heard by me at the Term ol
the Court held in January, 1889.
There being no dispute about the facts. the
case was heard on the complaint and answers.
These facts have been set out In the com
plant, and 1t will not be necessary to restate
them here. ,
in"S have been commenced consists:
/. or certain real and personal property
which belonged to r. Il. Gordon, and as TO
which he died intestate.
the Will of his father Robert Z. Gordon, anu
which was devised by the 7th clause or the
said VIII.
$. Certain personal estate which abe he held un-
der the Sth clause of his fathers VIII.
|. The property in the first class must OF
course after the payment of debts, be distrlb.
utcd amongst the parties according 10 Inc
statute of distributions-the parties entitled
thereto to be hereafter specified.
9. The 7th clause Of the Will is as follows
81 give. devise, and bequeath, unto my two
'sons, James and Robert Thomas, all my lana
"and real estate to them and their helrs. pnt
tissue living at the time OF his death, then l
"give his part to the survivor, and II the sur
"vivor should die without leaving issue at the
time of his death, then l give the same s !. 10
"my other children, subject to the same limit
"ations as is provided as to the bequests 10
"them respectively"
This clause and the Sth were the subject OF
very elaborate argument by counsel. but l
must content myself with a very brief state
ment of my views and conclusions.
The controlling words in this deyise are al
most identical with those in Lowry VS.:
OBryan,4 Rich. Eq. 1852. Here, as in that
case. the interest OF James in the share OF
Robert Thomas depends on two contlngen.
cieS. 1st. That James should survive robert
Thomas, and I'd. That Robert Thomas should
die without issue. In this case, as In the case
of Lowry VS.. OBryan, supra, James was IN
his grave many years "before the death OF
Robert Thomas and consequently he could
take nothing in his character as s,rptuor.' II
in Lowry VS.. O'Bryan the deceased brother
could not take, see no reason why he should
take in this case. 1t is not question as 10
,Uhat estate the deceased brother was TO take,
but whether he took any thing at alt. II ne
could not take fee as survivor, why take
life estate?
These brothers took fees in this land de-
feasible, and that defeasance depended on q
double contingency: 1st, death withont issue
living at the time Of death and End, having
as survivor one of the two. In this case there
is no survivor Of Robert Thomas to take that
part of the estate which was allotted TO MIN
In the partition.
AS TO the ultimate remaindermen. To my
mind the clear meaning OF the language is
that IL was intended to prevent the accrulng
share on the death Of one brother from pc.
coming part Of the absolute estate or the
survivor that these words were used. On the
death of one brother without issue his part OF
the estate was to go to the survivor II there
was one, and If the survivor dled wltnout IS
sue, then the same (his partl was to 60 over 10
s.the other children" with limitations, leav-
ing the survivors share which he took orig
inally subject to his own disposal. If the
word same means the whole property covered
by this clause 1T carries over James snare as
well Us Robert Thomas. If 1T refers only 10
a part, then the most natural construction Is
that it refers to his part, l. e., the part whlch
had gone over to the survivor for lallure Oh
issue. For these reasons hold that the prop
erty which Robert Thomas took as his share
under the 7th clause of the Will has become
indefeasible since there can be no survivor,
and Is now subject to partition In the same
way as all the balance OF his estate according
10 the statutes Of distribution OF lntestate es-
tates.
The Sth clause OF the Will is as follows:
IS. I give and bequeath unto my four chill
"dren in equal shares. to wit: James Goruon,
"Robert Thomas Gordon, Mary Watt Gordon
"of every kind, plantation tools, the balance
"of my money on hand, bonds, notes, and oil
"the rest and residue OF my estate OIL every
description for and during their natural
IS
"dren as either OF them should leave living
"at the time of his or her death respectively
las to his or her share, and II either OF my
''Said four children should die without leav-
death, then his or her share to 60 to the sur
"vivorS, and II the last survivor should dle
without leaving issue living at the time ol
"his or her death, then l give the estate ana
property hereby given TO them 10 my otner Ghil
"subject to the same limitations as Is provid.
led in the bequest given them respectively
In case either one of the four died leaving
children such children took in remainder the
share of such child without remaipders over.
In this clause we notice the same purpose TO
provide that in case Of death without issue
the accruing share shall not become the aDso-
case unless otherwise provided.-Hill VS.. Hill
Pi. For this purpose the VIII provides that
"the estate and property hereby given 10
them" III the last survivor should die Will VIII
out Issue" ETC., shall 60 to the "other chill.
dren." The estate that is to 20 over Is mol
alone the survivors, share but the dccr1tin9
shares as well. In the 7th clause the accrulng
share is to go over, but in the Sth now under
consideration not only the accruing share but
"the whole estate and property hereby given
TO them" is to 60 over. 1t must certainly
mean by them those who die without issue
living because the share OF the one who died
leaving children to take had already been
disposed of in ultimate remainder; in this
case TO the children OF James who had uleu
leaving two children.
This property then which is given over after
The death Of the Survivor is TO 60 ITO my other
alike" 1t must mean all OF those children
mentioned in the viii whose shares will not
90 over to survivors on the failure Of issue and
must include Mrs. Wilson and Mrs. McCord
who are mentioned in the will and must in
cude James Gordon though mentioned In the
Sth clause because he Is not one OF those
whose shares pass to those who take MS sur.
vivors and go over on failure OF issue. II
seems to be the intention of this will to make
the property of those Dlto take under this Sth
clause and aUlto tiie lDtttotI issue fund for the
benefit OF the "other children" mentioned IN
the Will with remainders over at thei1
deaths respectively. Under this view of the
will hold that the portion OF the estate oi
Robert Thomas Gordon which was devised
To him under this Sth clause OF the VIII OF n
Z. Gordon is now deyisable between Mary
Watt Gordon and Jane Eliza Gordon TO be
held by them under the 9Th clause of said
VIII. They are now well advanced in years
and the interests of those in remainder In
case they die without issue is, II not vested al
least transmissable. will therefore consider
what those interests are Mrs. Kirkwood is
not mentioned IN the will and therefore takes
nothing under 1t.
The Limitation over Is one third each tc
James Gordon, Mrs. Rosa McCord, and Mrs
Rebecca Eveline Wilson for life, and at their
death to children assuming that neither o
the two maiden sisters Will leave issue) as
these three children Of testator have dice
leaving children living at their deaths re
spectively and the share Of each will 80 t
their children respectively SO living at theil
death. | take it that all the children o
james Gordan and Mrs. Rosa Ann McCort
living at their death and now living and arr
before the Court. 1t is not clear what chill
dren of Mrs. Rebecca Eveline Wilson were
living at her death. 4 child who predeceasct
her can take nothing and if any have since
died the shares of those so dying can be pait
over only to personal representatives sub
ject TO debts and distribution.
personal representatives as parties if real es
tate alone was involved. l have come TO thi
conclusion as TO the rights Of the parties OIL
my construction Of the 3rd clause Of the VIII
IN Ire Mc('or6 nj tho n G tn Nrs WI