Macdonald v. Fagan

• Decision Date: 11 April 1922
• Docket Number: (No. 10849.)
• Citation: 111 S.E. 793
• Parties: MacDONALD et al. v. FAGAN et al.
• Court: South Carolina Supreme Court

111 S.E. 793

MacDONALD et al.
v.
FAGAN et al.

(No. 10849.)

Supreme Court of South Carolina.

April 11, 1922.

[111 S.E. 793]

Appeal from Common Pleas Circuit Court of Richland County; N. F. Rice, Judge.

Suit by William J. MacDonald and others against Patrick Fagan and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

The following is the decree of Judge Rice in the court below:

The Hotel Jerome, located in the city of Columbia, at the northwest corner of Main and Lady streets, is one of the best known hostelries in this state. For many years now it has supplied the needs and wants of the traveling public, and it still retains its justly earned popularity.

Jerome Fagan, after whom the hotel was named, and his brother, Thomas, were the owners, each one-half in fee in the realty, and in the personalty contained in the said hotel. On the 10th day of November, 1898, Jerome Fagan executed his last will and testament in proper form, and three days later died. The said will was duly admitted to probate, and the matter now before the court is the construction of its terms in so far as it relates to the ownership of the one-half interest of the said Jerome Fagan in the said hotel, or the proceeds thereof, after it has been sold as directed in said will, and certain legacies paid.

The hearing was had before me at the spring term of court for said county. Mrs. Lillie Fagan, the wife of Jerome, never remarried, is now dead also. No children, so far as the record shows, were born to Jerome and his wife. Mrs. Lillie Fagan also left a will, and the contest now on is between her heirs, legatees, and devisees, and the heirs, legatees, and devisees of her said husband, Jerome. After the death of the latter, and some 18 or 20 years ago, the building, known then also as the Hotel Jerome, was destroyed by fire—the writer of this opinion was stopping there as a guest at the time —and later was rebuilt with the proceeds of insurance and other funds borrowed or sup-

[111 S.E. 794]

plied by Mrs. Pagan for the purpose. This phase of the matter, however, is, as I understood at the hearing, not involved in the present litigation, and will not be passed upon by me.

The plaintiffs in this case contend that under the terms of said will of Jerome Pagan, his wife, Lillie, took a life estate in the one-half interest of Jerome in the said hotel and the fee in the proceeds of its sale, after her death or remarriage, subject, however, to the payment of certain legacies set out in item 3 of said will. This I understood from the arguments is the position taken by the attorneys for the plaintiffs, although the complaint in paragraph 8 sets out that Mrs. Fagan was the owner of Jerome's one-half interest in fee in the said hotel lot and building, subject only to the payment of the legacies above mentioned. From a practical standpoint I think it makes little difference as to which of the views mentioned might be a proper construction.

The defendants, on the other hand, claim that as to the proceeds of sale of Jerome's one-half interest in said hotel property, after payment of said legacies, there is an intestacy, and that therefore the heirs at law of Jerome Fagan are entitled thereto, and that Mrs. Fagan, his wife, could not dispose of it by will or otherwise. The legacies mentioned in item 3 of said will agregate $4,300. and excluding the gifts to Mrs. Fagan, constitute all of the direct devises or legacies provided in his said will by the testator. At the same time it is admitted, as I understand, that the said interest of Jerome in the property was at that time worth much more than the sum mentioned. This fact must undoubtedly have been known to Jerome at the time he made his will.

It is elementary that in construing a will the intention is to be sought, and if it does not conflict with some settled rule of law, then such intention must be given effect. In ascertaining such intention we will first examine the terms of the will itself. If there are conflicting clauses they must be reconciled if possible. Again, in the search for the intention every part of the will must be considered, and due consideration given thereto. In other words, it must be construed as a whole, and not in parts.

The testator, in item 1 of his will, devises to "his beloved wife, Lillie Fagan, " all of his interest in the property above described in the following words: "For and during the term of her natural life, " etc. In item 2 he disposes of his interest in the personalty connected with the hotel to his wife on the same terms and limitations as are set out in item 1. In item 3 he provides legacies amounting to $4,300 to be derived from the sale of his interest in the hotel, realty, and personalty, after the death or remarriage of his wife. Items 4, 6, and 7 are gifts to his wife in fee, about which there is no contention. Item 5 makes provision for improving the hotel property and conducting same. In item 8, however, he provides "all the rest and residue of my estate, real and personal, I devise and bequeath to my wife, Lillie Fagan." This last item is what is known to the law as a residuary clause, and on it the plaintiffs base their case. The defendants, as already stated, claim an intestacy as to the property in dispute. In Fraser v. Hamilton, 2 Desaus. 574, it is said: "When a man sets about making his will, it is to be presumed he means to dispose of the whole of his property, and not to die intestate as to any part of it, and that when he uses general words he means to dispose of everything he has." Again, in Welborn v. Townsend, 31 S. C. 413, 10 S. E. 98, the court says: "Where there is a will, the policy of the law is not in favor of declaring a partial intestacy, unless the reasons for such result arc clear and indisputable."

The principles announced in the cases cited are so generally recognized and supported by the authorities that I do not deem it necessary to burden this opinion with other decisions on the point.

The purpose and intent of a residuary clause, general in its terms, is to dispose of all property of the testator not before specifically disposed of, and under it all of his property and property rights not expressly excluded by devise to some other persons will pass. See Hopkins v. Mazyek, Rich. Eq. Cas. 279; Fraser v. Hamilton, supra.

Under the residuary clause of the testator above set out all of his property and property rights of every nature, not already disposed of by the terms of his will, passed to his residuary legatee or devisee.

The words used by him are "all of the rest and residue of my estate, real and personal." etc., and such words are ample to pass the property in question. See Cruger v. Hevward, 2 Desaus. 429; Stuckey v. Stuckey, 1 Hill, Eq. 308; Fraser v. Hamilton, supra; Swinton v. Egleston, 3 Rich. Eq. 201.

It will not do to say that, if the testator had wished to simply give his wife his one-half interest in the hotel, burdened with the payments of the legacies mentioned in item 3, he could have done so in terms so clear as not to admit of a doubt. He had the right to dispose of his property in any lawful way he chose, no matter how eccentric or peculiar the terms of the will may be.

In Hopkins v. Mazyek, supra, it is said: "Testator, having a power of appointment under his father's will, devised lands to his sons, respectively, during their lives, with remainder to such children as they might have at their deaths; and with cross-remainders among the sons, 'in case of the death of any of them under twenty-one and unmarried.' By a residuary clause, he devised 'the rest, residue and remainder of my estate, whatsoever, and wheresoever, including any estate not hereinbefore particularly devised, which I may have derived under the will of my father, unto my said sons and their heirs forever.' Held, that the residuary clause carried the ultimate fee, or reversion, in the lands, to the sons."

Commenting upon the method employed by the testator in his will to dispose of his property, the court says, at page 280 of Rich. Eq. Cas.: "However strange it may appear to us, that he should devise to them [his sons] the ultimate reversion, upon the failure of their own and their children's estates, yet there is nothing to prevent it from having legal effect."

So in the case before us, if Jerome Fagan saw fit to give his wife his interest in the hotel for life, and at the same time vest in her the right to the proceeds of sale of said interest, after the payment of certain legacies, there is nothing to prevent it from having legal effect,

[111 S.E. 795]

and in the opinion of this court the conclusion seems irresistible that this is what he did.

It appears to me, and I so hold, that the devise or gift is not of the ultimate reversion of the said hotel property itself, after the payment of the legacies specified, but of the proceeds of sale remaining after the payment of said legacies. The only safe way to pursue in the construction of the will is to take the testator to mean what he says. He instructs the property to be sold on the death or remarriage of his wife.

This can only mean that it was then to be converted into money. The purpose of a residuary clause being then to dispose of that part of his estate not already disposed of, what portion of Fagan's...