Albergotti v. Summers

• Decision Date: 02 August 1944
• Docket Number: 15670.
• Citation: 31 S.E.2d 129,205 S.C. 179
• Parties: ALBERGOTTI et al. v. SUMMERS et al.
• Court: South Carolina Supreme Court

31 S.E.2d 129

205 S.C. 179

ALBERGOTTI et al. v. SUMMERS et al.

No. 15670.

Supreme Court of South Carolina

August 2, 1944

Zeigler & Brailsford and C. E. Summers, all of Orangeburg, for appellants.

Adam H. Moss and P. F. Haigler, both of Orangeburg, for respondents.

OXNER Justice.

The plaintiffs own and hold a judgment against S. Dibble Moss and seek in this action to subject the interest acquired by him under the will of his mother, Frances Agnes Moss, to the payment of said judgment. The construction of this will is now before this Court for the second time. Certain paragraphs of the will are reported in the previous decision of this Court (203 S.C. 137, 26 S.E.2d 395, 397) and, with the exception of paragraph eight, need not be again quoted. Briefly stated, after certain bequests and devises, the residue of the real estate belonging to the testatrix was devised to certain named trustees "to hold and collect the rents and income therefrom for a period of twenty-one years" after the death of testatrix; and after paying the taxes, insurance and upkeep, the trustees were directed to pay a certain fraction of the net proceeds to S. Dibble Moss "for the support of himself and his family." It was further provided that if Dibble Moss died during this twenty-one year period, his share of said income should be paid to his children.

Upon the expiration of this trust period, the residue was disposed of as follows:

"Eighth: After the expiration of twenty-one years I direct my trustees hereinafter named to divide all of my real estate in as nearly equal portions as possible between my three children to go to them absolutely or to any child or children that they may leave surviving per capita. Should either of my children die without any child or children surviving them his or her share to go to my other children, share and share alike."

On the first appeal, this Court held that the will established a spendthrift trust for the support of S. Dibble Moss and his family and that the income of the trust, either while in the hands of the trustees or after being paid over to him for the support of himself and his family, was not subject to claims of his judgment creditors. The Court said: "The interest of S. Dibble Moss is an equitable life estate; he is without title or right to the possession of the property itself; the legal title is vested in the trustees named by Mrs. Moss in her will." It appeared in that appeal that the lower Court had not determined what estate, if any, S. Dibble Moss acquired after the expiration of the trust period and the case was remanded to the lower Court for the purpose of determining whether he acquired any interest which would be subject to the claim of the judgment held by the plaintiffs.

This issue was thereafter tried and the lower Court held that S Dibble Moss took a vested remainder in the residue of the real estate which was subject to levy and sale under the plaintiffs' judgment. The case is now before us on appeal by him and the trustees and the sole question for determination is whether S. Dibble Moss acquired any interest in the residue of the real estate which is subject to levy and sale under this judgment.

The cardinal rule in the construction of wills is to ascertain and give effect to the intention of the testator as expressed in the words he has used. The Court should so read the testator's language as to effectuate his purpose, if the canons of construction and interpretation permit. Rules of construction are designed to aid in determining the intention of the testator as expressed in the will, but when that intention has been clearly expressed and does no violence to established rules of law, arbitrary and technical rules of construction should not be permitted to defeat it. In construing a clause in a will the Court should consider its relation to other portions of the will in order to ascertain and give effect to the testator's real intention. Roundtree v. Roundtree, 26 S.C. 450, 2 S.E. 474; Peoples National Bank v. Harrison, 198 S.C. 457, 18 S.E.2d 1; and Lemmon v. Wilson, S.C., 28 S.E.2d 792.

With the foregoing principles in mind, we undertake to ascertain the intention of the testatrix. In doing so, we are materially assisted by the construction of a portion of this will heretofore made by this Court on the first appeal. It has been definitely held that this will creates a spendthrift trust in favor of S. Dibble Moss and his family. We may assume, therefore, that for reasons which the testatrix deemed satisfactory, she did not intend to make an outright gift of the rents and profits to her son during the period of twenty-one years covered by this trust. Her primary purpose was to assure him and his family adequate support. To accomplish this purpose and safeguard against any improvidence on his part, the spendthrift trust was established. The title to this real estate was vested in the trustees. In paragraph nine these trustees were empowered to "hold, manage and control" said property, and they were further empowered to sell any of the real estate and reinvest the proceeds in other real estate, or in bonds or other securities.

Realizing the possibility of a contingency when the income provided for the children and grandchildren in other portions of the will might be insufficient to adequately provide for their support, maintenance and education, the testatrix provided for such contingency in paragraph ten wherein she empowered her trustees "to use any part of the principal of my estate for the benefit of my said children or grandchildren and that such advances be charged to their share or their parent's share, respectively, of my estate, and deducted therefrom when same is finally divided and distributed at the expiration of the time herein provided."

The primary concern of the testatrix in disposing of the residue of her estate was the welfare of her children and grandchildren during this period of twenty-one years. During this period the property devised to the trustees was to be kept intact. The testatrix was unwilling to vest title in her children or grandchildren. In passing upon this trust in the previous opinion, this Court said: "Trusts of this kind are intended to secure the trust fund against the improvidence of the cestui que trust by protecting it against his creditors and rendering it inalienable by him before payment."

We now consider whether the contention of the respondents that a vested estate immediately passed to this son upon the death of the testatrix harmonizes with this general scheme contained in the will. If such an estate vested, it was subject to alienation and assignment at the will of the owner and could be subjected to the payment of any judgments against him. After having so carefully protected the income and rents against such a contingency, was it the intention of the testatrix to vest the remainder immediately in this son so as to give him the...