Allison v. Wilson
| Decision Date | 08 January 1991 |
| Docket Number | No. 23513,23513 |
| Citation | 411 S.E.2d 433,306 S.C. 274 |
| Parties | Edna K. ALLISON and Theo Scott Sanford, Respondents, v. Zelma Scott WILSON, R. Carter Scott, Philip Scott, Hugh Scott, Olive S. Forde, Ann S. Strand, John O. Scott, John Meadows, III, Scott Meadows, Mike Meadows, Sue S. Hayes, Linda Ann Senn, Mary Beth Viohl, Daniel W. Swint and Linda G. Swint, Defendants, Of Whom Zelma Scott Wilson is Appellant, and R. Carter Scott, Philip Scott, Hugh Scott, Olive S. Forde, Ann S. Strand, John O. Scott, John Meadows, III, Scott Meadows, Mike Meadows, Sue Hayes, Daniel W. Swint and Linda G. Swint, are also Respondents. . Heard |
| Court | South Carolina Supreme Court |
Wesley Waites, Jr., West Columbia, for appellant.
O. Douglas Smith and Thomas P. Murphy, of Smith & Murphy, of North Augusta, for respondents Edna K. Allison and Theo Scott Sanford.
Charles W. Coleman, of Edgefield, for respondents R. Carter Scott, Philip Scott, Hugh Scott, Olive S. Forde, Ann S. Strand, John O. Scott, John Meadows, III, Scott Meadows, Mike Meadows and Sue Hayes.
Kelly Zier, North Augusta, for respondents Daniel W. Swint and Linda G. Swint.
Appellant Zelma Scott Wilson appeals the Court of Appeals' opinion affirming the circuit court's construction of the will of Inez Scott Kahrs. We reverse.
The following portion of Item 4 of the will is controverted:
I give and devise the two parcels described in this Item of my will to my brother, O.B. Scott, for his natural life, with the right to remove and cut any timber on its becoming large enough to sawmill, with remainder over to my brother R.C. Scott, and my two sisters, Myrtle Scott Klugh and Zelma Scott Wilson, share and share alike, and should either of the remaindermen named pre-decease me it is my wish that the children of such deceased parent shall take the share that would have come to the parent if still in life.
It is my wish that the three remaindermen named shall take the property described in this Item in fee simple on the death of the life tenant, but before the vesting of the fee simple title I require that should my brother's wife, Anita Reddick Scott, survive him, that the remaindermen named in this Item shall tender to her $1,000.00 in cash within six months after the death of my brother, the life tenant. If the remaindermen named should fail to make such tender within six months after the death of my brother, the life tenant, should Anita Reddick Scott survive him, then, she, Anita Reddick shall take the parcels described herein in fee simple.
The testatrix, Inez Scott Kahrs, died in 1956. Remainderman R.C. Scott (R.C.) died in 1973, survived by children. Remainderman Myrtle Scott Klugh (Myrtle) died in 1980, survived by a daughter. O.B. Scott, (O.B.) the life tenant, died in 1985, survived by his widow Anita Reddick Scott (Anita). The $1,000 payment required by the will was timely tendered to Anita following O.B.'s death.
Respondents Edna K. Allison and Theo Scott Sanford instituted this declaratory judgment action in 1987 seeking, inter alia, construction of Item 4 of the will. The matter was referred to a special referee who heard the case and issued his order, which included the following conclusions of law:
Inasmuch as the life tenant named in Item IV of the Will of Mrs. Kahrs survived the testatrix, it is clear that a life estate was created which was terminated upon his death in 1985. A charge was placed upon the remainder over as follows: "Before the vesting of fee simple title, I require that ... the remaindermen named in this Item shall tender to [Anita Reddick Scott] One Thousand and No/100 ($1,000.00) Dollars in cash within six (6) months after death of my brother." Such tender in fact was made three (3) days following the death of the life tenant, and therefore the charge on the real estate imposed by Item IV of the Will was satisfied and is now extinguished.
The central issue before the Court is whether the language of Item IV gave the remaindermen a vested interest as of the date of the death of Mrs. Kahrs, or whether, as contended by the Defendants, the testatrix intended that the remainder interest not vest until the death of the life tenant.
. . . . .
There can be no question that the language quoted above gave the remaindermen a vested remainder in fee simple as of the date of the death of the testatrix, subject only to the charge on the property to pay cash monies to the widow of the life tenant following his death.
. . . . .
... Therefore, as of the date of [death of] the testatrix, and subject to the life estate, R.C. Scott, Myrtle Scott Klugh, and Zelma Scott Wilson each owned an undivided one-third ( 1/3) interest in the remainder of the property.
Appellant filed exceptions to the special referee's report. The circuit court affirmed the special referee's findings of fact and conclusions of law. On appeal, the Court of Appeals affirmed, "with a minor variation," the order of the court of common pleas and denied appellant's subsequent petition for rehearing. By order dated September 27, 1990, this Court granted appellant's petition for writ of certiorari.
The sole issue before this Court is whether the remainder interest devised to R.C., Myrtle and appellant vested at the death of the testatrix.
Appellant asserts the testatrix intended that remaindermen who survived the testatrix must also survive the life tenant and make the cash tender before fee simple interest would vest.
Respondents contend the testatrix intended that fee simple interest vest at the death of the testatrix and that the remainder interests be transmitted through the remaindermen to their children. We disagree.
The rules of construction are subservient to the primary consideration of ascertaining what the testator meant by the terms used in the written instrument itself, and each item of a will must be considered in relation to other portions. Echols v. Graham, 256 S.C. 202, 182 S.E.2d 69 (1971); Miller v. Rogers, 246 S.C. 438, 144 S.E.2d 485 (1965); Black v. Gettys, 238 S.C. 167, 119 S.E.2d 660 (1961). Notwithstanding rules and presumptions which favor vesting of estates at the earliest possible time, rules of construction are designed to aid in determining a testator's intent. In instances where such intention has been clearly expressed and would not violate established rules of law, arbitrary rules of construction should not be permitted to defeat a testator's intent. Lee v. C & S National Bank, 253 S.C. 556, 172 S.E.2d 114 (1970); Albergotti v. Summers, 205 S.C. 179, 31 S.E.2d 129 (1944).
The Court of Appeals determined that Freeman v. Davis, 113 S.C. 502, 101 S.E. 855 (1920), is controlling. We find a clear distinction between the terms of devise employed by Inez Scott Kahrs and the terms used by the testator in Freeman. Following is the pertinent portion of the will in Freeman:
... [A]t the death of my beloved wife, Jane C. Davis, the whole of my estate shall become the property of my brother, William Davis, provided my brother, William Davis, shall within six months after the death of my wife pay to my nephew, William C. Davis, three hundred dollars in money. (Emphasis added).
The testatrix in the case under consideration provided:
It is my wish that the three remaindermen named shall take the property described in this Item in fee simple on the death of the life tenant, but before the vesting of the fee simple title I require that should my brother's wife, Anita Reddick Scott, survive him, that the remaindermen named in this Item shall tender to her $1,000.00 in cash within six months after the death of my brother, the life tenant. If the remaindermen named should fail to make such tender within six months after the death of my brother, the life tenant, should Anita Reddick Scott survive him, then, she, Anita Reddick (sic) shall take the parcels described herein in fee simple. (Emphasis added.)
We read Freeman to make the specified cash tender a condition subsequent to the vesting of fee simple title, which was not contingent upon such tender. Conversely, the Kahrs will states explicitly that before vesting of fee simple title, the named remaindermen shall tender the required cash to Anita, if Anita survived O.B.; and upon failure of the named remaindermen to make such tender, Anita shall take the parcels in fee simple. Every word or phrase in a will must be considered and, if practicable, effect...
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