April 18, 1922. The opinion of the Court was delivered by
MR. CHIEF JUSTICE GARY.
Action for recovery of real estate. The case was tried upon an agreed statement of facts, by Judge Peurifoy, which decree, with the agreed statement and a copy of the deed, will be reported.
The appeal involves the correctness of the conclusion that the deed created a fee conditional in Miss J.M. Wilson.
Section 3551, Code of Laws, 1912, contains this provision:
"Whenever, in any deed or other instrument in writing, not testamentary, hereafter executed, or in any will of a testator hereafter dying, an estate, either in real or personal property, shall be limited to take effect on the death of any person without heirs of the body, or issue, or issue of the body, or other equivalent words, such words shall not be construed to mean an indefinite failure of issue, but a failure at the time of the death of such person."
Therefore, the limitation over must be read as follows:
"It is furthermore understood, that if the said J.M. Wilson dies without lawful heirs, living at the time of her death, the above-named tract of land must return to our estate, and be equally divided among our heirs."
These words are not sufficient to create a fee conditional, and the exceptions raising this question are sustained. Addison v. Addison, 9 Rich. Eq. 58. Shaw v. Erwin, 41 S.C. 209, 19 S.E. 499. Barber v. Crawford, 85 S.C. 54, 67 S.E. 7.
The question whether the deed conveys a fee simple absolute or a fee simple defeasible to Miss J.M. Wilson (afterwards Poston) has not been passed upon by the Circuit Judge, and it is not therefore determined by this Court.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.