Joyce v. Bode

Decision Date13 April 1906
Citation54 S.E. 239,74 S.C. 164
PartiesJOYCE v. BODE et al.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas, Circuit Court of Charleston County Memminger, Judge.

Action by Mary B. Joyce, administratrix of William Meagher, against Kate L. Bode and others, to construe a will. From the decree plaintiff appeals. Affirmed.

The following is the decree of the court below:

"This is an action brought by the plaintiff (who has qualified as administratrix with the will annexed) for the construction of the will of the late William Meagher, of Charleston, who died in January, 1904, leaving a considerable estate of both real and personal property. His widow, Mary Meagher, died in September of the same year, intestate, and the plaintiff is also the administratrix of her estate. No question has been argued before me except upon the construction of the will of William Meagher, and this decree purports to go no further into the case than to construe said will. Three distinct constructions are urged upon the court by the various attorneys for the parties in possible interest. The first is the construction sought on behalf of the plaintiff, Miss Joyce, whereunder the estate would go to the next of kin of the widow of William Meagher. The second is whereunder the estate would go to the next of kin of William Meagher himself; and the third is whereunder the estate would go to certain institutions of the Catholic Church. The case was referred to Master Sass to take testimony, and the same has been taken and reported including a photographic copy of said will, which counsel have agreed shall be the copy in evidence, and the same is hereto next attached as a part of this decree:
State of South Carolina. In the Name of God, Amen.
I William Meagher of Charleston and State aforesaid, of Sound and disposing mind and Memory do Make Publish and declare this to be My last Will and Testament hereby Revoking all others heretofore Made I direct first all my just debts funeral and other expenses to first Paid.
I give, devise and bequeath to my wife Mary Meagher of Charleston and State aforesaid all My Real Estate and Personal Property of which I may die Seized and Possessed of and I Nominate, Constitute and appoint My Wife, Mary Meagher of Charleston and State aforesaid, Executrix of this My last Will and Testament Without Bond as long as she Remains My Widow, but if She gets Married again then her authority must seize and all My Real Estate and Personal Property must be sold and I make the following Bequests:
I leave one Thousand Dollars for a Monument to be Put on My lot in the Cemetery With Brick foundation and granite Stone around the same and the Pastor of Saint Patrick's Church to have the Same done for me. I leave Three hundred dollars to buy a bond for the keeping in Perpetual Care of My two lots in the Cemetery and the Pastor of Saint Patrick Church to have the Same done for Me.
I leave to Saint Patrick one Thousand dollars for a perpetual Mass. to be said in Saint Patrick Church once a month for My self and Wife and My Father and Mother Jeremiah and Bridget Meagher also My Wifes Father and Mother Michael and Margaret Joyce. I leave to Saint Patrick's Church the amount of Eight Thousand Dollars for the purpose of Putting an iron Railing fence With Brick foundation and granite Stone along the Same from the one Now in front of the Church along Radcliffe Street to the East End of the Church lot and More if wanted to Complete the Work.
I leave five hundred Dollars for to help to Educate young Men for the Priesthood, I leave My two Nephews Jeremiah and William Cullinane the amount of two Dollars Each and My Nieeces Mary Catherine Sally and Johanna Maiden Cullinane the amount of two dollars each.
The Rest and residue I leave to the Rector of Saint Patrick's Church to be turned over by him to the Mother in Charge of the City orphans on Queen Street.
and after My Wifes Death or if She gets Married again then I Nominate, Constitute and appoint the Rev. D. J. Quigley or his Successor Executor of this My last Will and Testament giving him full Power and authority to Sell or any Part of My Estate Real Personal or Mixed and at Such times and Such terms and for Such Purposes as he May deem Well at Public or at Private Sale.
Witness My hand and Seal at Charleston State aforesaid November the fourth Nineteen hundred and 1903 Three.
William Meagher.
Signed Sealed Published and declared by the said Testator William Meagher as for his last Will and Testament in the Presence of us Who at his Request in his Presence and of Each other have hereunto Subscribed our Names as Witnesses.
1. Edward W. Wynne.
1. T. G. Baker.
3. Elliott T. Henery.'
The master also reported certain testimony of a witness offered to explain the intention of the testator as said to have been expressed to the witness, and this testimony (being that of a witness Corbett) is reported subject to objection and motion to strike out. I shall dispose of this question in limine, and sustain the objection to the testimony and order the same stricken out, which I do under the authority of Clarke v. Clarke, 46 S.C. 240, 24 S.E. 202, 57 Am. St. Rep. 675, wherein the law bearing upon this point is carefully stated by Chief Justice Pope as follows: 'We have always understood the rule of law as enforced by the courts of this state regulating the competency of testimony of this character to be that anything that will show the surroundings of the testator--his family, their names, age or sex, his property, its name, value or character, his use or words, if in any way peculiar, or to explain any ambiguous expressions occurring in the will--is admissible. We have never known that testimony as to intention, separate and apart from that conveyed by the language used in the will, could be held competent.' The testimony of the witness Corbett here offered does not come within this rule, and it is therefore excluded and not considered. I shall also endeavor to disabuse my mind entirely of the statement of counsel outside of the record, made during the argument, as that both testator and his wife were aged people, at the time of the execution of the will and the testator's death; the improbability of friendly relations existing between him and his wife's next of kin; his devotion to the Catholic Church of which he was a member; and that the Rev. D. J. Quigley was rector or pastor of Saint Patrick's Church, of which the Rev. William J. Wright, named as a defendant in the case, is now pastor; and shall confine my search for a proper legal construction of this will to the terms of the will itself, bearing in mind that, in construing the will, I must be governed entirely by that which is written within the 'four corners' of the instrument; the intention of the testator, as therein expressed, being (to use the trite but hackneyed phrase) the 'pole star of construction.'
It will be observed that the opening clause, and the attestation clause and the clause appointing Rev. Quigley as executor of Mr. Meagher's will, differ widely from the other clauses, having evidently been copied from some more skillfully prepared will which had been examined at some time or other by him. The rest of the will shows an attempt on the part of a man of little education, and inaps consilli, to construct a will providing for the distribution of his property with the manifest dominant intention of making certain institutions of the Catholic Church his beneficiaries, these benefits to take effect upon the death or remarriage of his widow; and the details of and provision for carrying out these benefits indicate that they had been carefully thought out and were dear to his heart. The language itself of these portions of the will is crude and all without punctuation, and even the paragraphing is unusual, but the formal execution of the will complies with all legal requirements. The clauses chiefly to be considered are as follows: 'I give devise and bequeath to my wife Mary Meagher of Charleston and State aforesaid all my real estate and personal property of which I may die seized and possessed of and I nominate constitute and appoint my wife Mary Meagher of Charleston and State aforesaid Executrix of this my last will and testament without bond as long as she remains my widow but if she gets married again then her authority must seize and all my real estate and personal property must be sold and I make the following bequests.' Then follow certain disposition of the proceeds of sale chiefly for the benefit of and to be under the charge of the pastor of Saint Patrick's Church; the residue to the Catholic Orphan Asylum on Queen street, in Charleston. 'and after my wife's death or if she gets married again then I nominate constitute and appoint the Rev. D. J. Quigley or his successor executor of this my last will and testament giving him full power and authority to sell or any part of my estate real personal or mixed and at such times and such terms and for such purposes as he may deem well at public or at private sale.'
The question is: What estate did the widow take under this will? She died shortly after the testator, intestate and unmarried, and they had no children. If she took the fee defeasible only upon her remarriage, her next of kin are now entitled to the property. If she took a life estate at most, and the bequests enumerated in the will, and the residue after such bequests, became operative upon her remarriage or death, then the executor named to succeed her, as his successor, upon either contingency, takes the property as trustee to carry out these provisions. If she took a life estate at most, and the bequests were to become operative only upon her remarriage and not also upon her death, then the remainder is too indefinitely
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