Briggs v. Briggs, 9122

• Decision Date: 28 November 1950
• Docket Number: No. 9122,9122
• Citation: 73 S.D. 500,45 N.W.2d 62
• Parties: BRIGGS v. BRIGGS et al.
• Court: South Dakota Supreme Court

Page 62

45 N.W.2d 62

73 S.D. 500

BRIGGS v. BRIGGS et al.

No. 9122.

Supreme Court of South Dakota.

Nov. 28, 1950.

Miller, Kaye & Hanson and Fellows & Fellows, all of Mitchell, for plaintiff and appellant.

Palmer & Palmer, Woonsocket, for defendant and respondent.

SMITH, Judge.

Whether language which otherwise would describe a fee absolute is restricted to a life estate by subsequent expressions contained in the will persented for construction is the question we are to consider.

The plaintiff, Alfred I Briggs, is a son of Claude Briggs and the grandson of the testator, Ireson F. Briggs. Resting his claims upon the provisions of his grandfather's will, the plaintiff claims title to an undivided interest in 640 acres of Sanborn County land described in the sixth provision of that will.

The testator, Ireson F. Briggs, settled on a farm in Sanborn county in 1880. His wife died in 1899. He and their three children Claude, Addie and June carried on together; Claude assisted with the operation of the farm and the girls with the Care of the home. Claude and Addie married in 1913. The will was made earlier that year, the testator then being of the age of about 54, and his children of the respective ages of 25, 23, and 19. The will reads as follows:

'In the name of God Amen

I, Iresonn F. Briggs of the township of Oneida the county of Sanborn in the state of South Dakota being of sound mind and body and realizing the uncertainty of this life * * *. Do hereby publish declare and proclaim this instrument to be my last will and testament Follows to wit

'First

'Before there is any some paid to any of my heirs I desire that all of my just debts and my funeral expences be paid

'Second

'I have a life insurance on my life which consists of two thousand dollars in the Modern Woodman lodge of America. This I will to my two daughters share & Share alike June E. Briggs & Addie B. Briggs

'Third

'I also will to my daughter Addie B. Briggs in addition to her share of my life insurance The following described 1/4 sec. of land The S-W-1/4 of Sec. 24-108-61--In Jackson Township

'Fourth

'I will to my daughter June E. Briggs in addition to her share in my life insurance the following described 1/4 sec of land The S-W-1/4 of Sec-1-107-61-. In Silver creek Township

'Fifth

'I will to both of my daughters Addie B. Briggs & June E. Briggs the following described 1/4 sec of land The N.W-1/4 of Sec. 31-108-60 In Floid township I will that they shall share equal in this piece of land share & share alike

'Sixth

'I will to my Son Claud D. Briggs The following Described land The West 1/2 of the N-E 1/4 of sec 6 Oneida Township & the East 1/2 of N-W-1/4 of sec 6 Oneida Township & the West 1/2 of N-West-1/4 of sec 6 Oneida Township Which constitutes three eighties of land in sec. 6-Oneida township Sanborn Co., So. Dak. I also will my son Claud D. Briggs The East 1/2 of N-W 1/4 of sec-1-107-61 in silver creek Twp. & the West 1/2 of N-E 1/4 of sec. 1-107-61 in silver creek Twp. & the E 1/2 of the N.E. 1/4 of sec. 1-107-61 in silver creek Twp. consisting of the eighties in sec. 1. Silver Creek Twp. in Sanborn Co. So. Dak.

'I also will my son Claud D. Briggs The S.W. 1/4 of sec. 31-108-60 in Floid Township Sanborn Co. So Dak.

'This makes a section of land willed to My son Claud D. Briggs I also will to my son Claud D. Briggs All of the personal property on my farm at the time of my death so he may have So that he will have the section of land the stock teams tools & everything in tact as I have had it

'Seventh

'I have two notes of $1,000 each given to my daughters one for $1,000 to Addie B. Briggs & one for $1,000 to June E. Briggs. In case these notes are not paid before my death I hereby provide and require my son Claud D. Briggs to pay these notes out of his share of the estate as he has received more of my estate than my daughters have received under the provision of my will. These notes are in my deposit box in the citizens bank of Woonsocket and are on demand

'Eight

'I want it plainly understood that all of this land mentioned in this will is in Sanborn Co. South Dakota. And I also want it plainly understood that none of my heirs mentioned in this will can sell or dispose of the land given to them in this will unless they are actually obliged to for their support The intention of this clause is to have the land whichI have given to my heirs in this will to remain in their possession during their life so they can have homes and a living during their life and leave homes to their children as I have left homs to them In case any of the heirs mentioned in this will actually need any of the proceds of this land for their support they can sell any part of it But they must have the consent of the other heirs mentioned in this will and they must agree that it is necessary for the support of the heir that is to sell the land

'Ninth

'I also will and direct in case of the death of one of the heirs mentioned in this will without issue which shall be a living child the other heirs mentioned in this will shall inherit their share of the estate will to the deseased heir share and share alike But in case of a living issue child or children I will that they or them inherit their parents portion of the property they receive under the provision of this will.

'Eidhth

'I hereby appoint all three of my children executors of this my last will and testament without bonds That this will is written in my own hand writing every word being written by me

'In Testimony Where Of I hereunto subscribe my name and affix my seal this 18th day of March A.D. 1913

Ireson F. Briggs'

In 1918 the testator made the following codicil to his will: 'Codicile to my last will and testement Having sold the S.W-Sec-24- Town-108-R-61- which was willed in this will to my daughter Addie B. Briggs now Addie Judy for the sum of $8800 I hereby in liw there of devise and bezuethe to my said daughter Addy Judy the sum of $8800 to be paid out of any money or personal property on hand at the time of my death if there is not sufficient money and personal property on hand to pay the same it shall be paid out of the realestate that has been in this will to my son Claud Briggs and is to be paid within five years But said amount shall bear interest at five per cent after my death

'Dated at Woonsocket So. Dak. May 1st 1918

I. F. Briggs'

Thereafter the testator retired and moved to California, leaving the farm in Claude's hands. In 1922 he died and the will was probated in California and South Dakota. The proceedings describe the property listed in the will and codicil and additional property in California. The California estate was valued at about $18,000. The decree in the proceedings in South Dakota purported to distribute the 640 acres described in the sixth provision of the will to Claude in fee. Plaintiff, a son of Claude, was two years old when his grandfather died.

Claude died testate in 1944. He was survived by the defendants Helen W. Briggs, his widow, and their daughters Margaret Ann Briggs and Claudia Leone Briggs, and by plaintiff, his son, by his first wife. The final decree in his estate distributed all of his property in accordance with his will to defendant Helen W. Briggs.

Thereafter this action was brought by plaintiff to quiet title to an undivided interest in the 640 acres of land described in the sixth paragraph of the will of his grandfather. Because of alleged defects in the probate of the wills of his grandfather and father, respectively, plaintiff asserts that he is not bound by the decrees of distribution entered therein. According to plaintiff's construction of his grandfather's will, it devised the section of land to his father, Claude, for life, with remainder over to his three surviving children, Margaret Ann Briggs, Claudia Leone Briggs, and plaintiff. Plaintiff's contention is that although the sixth provision of the will is sufficient, standing alone, to create a fee absolute in his father Claude, the subsequent expressions of the eighth and ninth provisions restrict his father to a life estate, and vest a remainder in fee absolute in the three children, his surviving issue. The trial court concluded that the ninth provision of the will was substitutional in character, and that the testator intended to devise a fee absolute to Claude.

Stated in different terms, the question presented by plaintiff is whether the testator by the ninth paragraph of his will intended a substitutional provision to be effective if any of his children failed to survive him, or a successive provision for contingent remainders over at the death of each child.

The sole purpose of the process of construction is to discover the intention of the testator. If that intention is clearly revealed by the language of the will, when read in its entirety in the light of the circumstances of its formulation, it will be declared. If after its language is so considered, doubt remains as to the meaning the testator sought to express, his intention will be determined by reconsidering his entire language and the circumstances surrounding the making of the will in connection with established canons of constructional preference. The intention of the testator having been determined there remains the question whether restrictive rules of law render it ineffective in any respect. SDC 56.03; Hill-Taylor Co. v. Shade, ...