Roundtree v. Roundtree
| Decision Date | 19 April 1887 |
| Citation | 2 S.E. 474,26 S.C. 450 |
| Parties | ROUNDTREE and others v. ROUNDTREE and others. |
| Court | South Carolina Supreme Court |
Appeal from circuit court, Barnwell county.
Bill for construction of will.
Henderson Bros. and Aldrich & Ashley, for appellants.
Robert Aldrich & Croft, for respondents.
Some time in the year 1860, William Roundtree, late of Barnwell county, in the state aforesaid, departed this life, having previously, to-wit, on the twelfth of January, 1858, duly made and executed his last will and testament. At the time the will was executed the testator had a wife and seven children. He had previously lost four children, two of whom died childless and unmarried, and the other two having each left one child,--one a son and the other a daughter. One of testator's sons, James W. Roundtree, who wrote the will and who had at the time seven children, which was known to the testator, died about five or six days before his father leaving eight children, but for prudential reasons the testator was kept in ignorance of his son's death until a very few days before his own death. By the first clause of his will the testator gave to his wife, Jane Roundtree certain slaves, together with the tract of land on which he resided, and also the Killingsworth tract, "and as much of the stock--horses, mules, cattle, and hogs--and provisions, together with the house furniture and plantation tools, as she may want for her own use during her natural life; and at her death it is my will and desire that it shall all be equally divided, share and share alike, between my surviving children." By the second clause, he gave to his granddaughter Teresa Wood, the child of his predeceased daughter, a negro girl, with the provision that, "should she die leaving no children, the said negro girl, with her increase, if any, to revert back and be equally divided between my surviving children." By the third clause he gave to his grandson John B. Roundtree, a son of his predeceased son, a negro boy, with a similar provision, in case of his death without children, to that contained in the next preceding clause. By the fourth clause he says: "It is my will and desire immediately after my death that the whole of the rest, residue, and remainder of my estate, both real and personal, shall be equally divided between my surviving children, share and share alike." By another paragraph of the same clause he declares it to be his will that his wife, Jane, his granddaughter Teresa Wood, and his grandson John B. Roundtree, shall have nothing more than what is given to them, respectively, in the first, second, and third clauses above written. By another paragraph of the same clause he declares: "Finally, it is my will and desire that, if any of my children should die leaving no issue, the property they receive from my estate shall revert back, and be equally divided between my surviving children." And, after providing that his son James W. Roundtree should receive and manage the share of his son Augustus until he attained the age of 21 years, he, in the last paragraph of the fourth clause, appoints his executors, and says: "I desire that they shall make the division of my estate, as written above, which division, when made, shall be final."
It is stated in the circuit court decree that, very soon after the decease of the testator, the residue of his estate was divided into seven equal parts, one of which was allotted to the children of James W. Roundtree, who had predeceased the testator by a very few days; but this fact does not appear in the "agreed statement" upon which the case seems to have been heard.
During the life-time of the testator's widow, to-wit, in 1869, one of the testator's daughters, Martha, who had intermarried with one Meyer, departed this life, leaving as her heirs at law her husband and seven children, who are parties plaintiff in this action. During the same period, but at what time precisely does not appear, the interest of Augustus M. Roundtree in the remainder of his father's estate, after the termination of the life-estate of his mother, was sold by the sheriff under execution, and bought by one Dicks, who having died, his heirs at law are made parties, claiming the share of said Augustus under the sheriff's deed, which, however, was not recorded within the time prescribed by law, and not until after the assignment by Augustus to the defendant Weathersbee, hereinafter mentioned, was executed. The life-tenant, Mrs. Jane Roundtree, having died some time in September, 1885, the executors, under the impression that the will conferred upon them the power so to do, proceeded to sell the land devised to the widow for life, for the purpose of making a division thereof as directed by the will, and this sale, by the consent of all parties concerned, has been confirmed by an order in this cause, in which all the equities are reserved and transferred from the land to the fund arising from the sale. Soon after this sale was made by the executors, to-wit, on the seventh of December, 1885, Augustus M. Roundtree assigned to the defendant Weathersbee all his right, title, and interest in that portion of the estate of his father which was given to his mother for life, and directed the executors to pay over said interest to said Weathersbee. A copy of this assignment is set out in the case, from which it appears that though the attesting clause seems to have been written with the intention of its being under seal, "Witness my hand and seal," yet there is no seal placed opposite the name of the assignor, and there is but one subscribing witness.
The main object of this action, which was commenced on the twenty-third of December, 1885, is to obtain the decree of the court as to the proper construction of the first clause of the will of the said William Roundtree, as well as to determine the conflicting claims of the heirs of Dicks, and the defendant Wethersbee to the interest of Augustus. Without undertaking to give even an abstract of the elaborate reasoning which conducted the circuit judge to the conclusions which he adopted, his whole decree being set out in the case, it is sufficient to state here the conclusions of law which he reached to which error is imputed by the several grounds of appeal. First, he concluded that the children of James W. Roundtree, as a class, were entitled to the share in the remainder to which their father would have been entitled if he had survived the testator; second, that the heirs of Mrs. Meyer were also entitled to the share of the remainder to which she would have been entitled; third, that the heirs of Dicks were entitled to the interest of Augustus M. Roundtree under the sheriff's deed. From this decree the defendants Weathersbee and Augustus M. Roundtree appeal upon the several grounds set out in the record, which need not be more specifically stated at this stage of the opinion, as the controlling propositions of law upon which these grounds are based will be hereinafter stated and considered. The heirs of Dicks, by their appeal, only impute error to the circuit judge in his first conclusion above stated, upon grounds which will hereinafter be considered. The children of James W. Roundtree, while not appealing from the decree, give notice, according to the proper practice, that the judgment should be sustained upon an additional ground to those upon which it is rested by the circuit judge, to-wit: "That it appears from the fourth clause of the will that the testator intended, should any of his children die, in his life-time, leaving issue, such issue were to be substituted for and take instead of such child dying."
It should have been stated before, perhaps, that no question is made as to the personal property given to the widow for life, for the reason, probably, suggested by the circuit judge, that it is not likely that "any of it has survived the wear and tear of twenty-five years' use, and the wreck of Sherman's march through that section in the early part of the year 1865." At all events, the controversy here is, as we understand it, confined to the land, or rather the proceeds of the sale thereof.
It seems to us that the controlling question is as to what the testator meant by the terms "my surviving children," as used in the first clause of the will. To determine this question we must ascertain what period must be looked to with a view to discover who would then be the surviving children of the testator. But three periods have been or can be suggested for this purpose: (1) The date of the will; (2) the death of the testator; (3) the death of the life-tenant, the widow. The first idea which naturally presents itself is that if the testator, when he used the words in question, had reference to either the first or second periods above suggested, then the use of the word "surviving" was wholly unnecessary; for it is quite clear that, if it was the intention of the testator that the remainder should be divided among his children who were living at the time of the execution of the will, or at the time of his death, (the period when a will is ordinarily supposed to speak,) the words "my children" would mean precisely the same persons as the words "my surviving children." For, suppose it be assumed or proved to a demonstration that the testator, when penning his will, intended that all of his children who were then living should share in this remainder, and he had used in the clause the words "my children," instead of the words "my surviving children," is it not clear that the words "my children" would just as perfectly have designated the persons whom we have supposed he intended should take as if he had used the words "my surviving children?" in fact more so, for the interpolation of the word "s...
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