Busby v. Busby

• Decision Date: 24 December 1927
• Docket Number: 12333.
• Citation: 140 S.E. 801,142 S.C. 395
• Parties: BUSBY v. BUSBY et al.
• Court: South Carolina Supreme Court

140 S.E. 801

142 S.C. 395

BUSBY v. BUSBY et al.

No. 12333.

Supreme Court of South Carolina

December 24, 1927

Appeal from Common Pleas Circuit Court of Aiken County; H. F. Rice Judge.

Suit by M. E. Busby, as executrix of the will of D. B. Busby deceased, against M. E. Busby, individually and in her own right, and others, for construction of decedent's will.From a decree confirming report of a master to whom the cause was referred to take testimony and pass on the issues defendantsJoel W. Riser and others appeal.Affirmed.

The decree of Judge Rice and the exceptions thereto, referred to in the opinion, are as follows:

Decree.

D. B. Busby, a resident of Aiken county, died on or about the 28th of January, 1925, leaving of force his last will and testament, which was duly admitted to probate and the present litigation is over the proper construction of some of the items of said will.At his death testator left surviving him no children, but his wife, the plaintiff.He was possessed of considerable property, both real and personal, at the time of his death.All the issues involved were referred to Edward S. Croft, Esq., and from the report filed by him on January 23, 1926, exceptions were taken, and on May 22, 1926, argument on said exceptions was had before me.

The exceptions raise only two questions.The first is as to whether or not a gift of $50 to Newberry College was not adeamed by a gift of $500, made by the testator prior to his death, and after the making of the will.At the hearing, however, little stress was laid on this exception, and counsel stated, on account of the smallness of the amount involved, that they cared little about it, so that I will leave it as the master decided.

It was admitted that, as to certain of the property of the testator, his wife had a life estate therein, but that the remaining was not disposed of.The master held that, as to his property, the plaintiff, the wife of the testator, took a fee in one-half of the remainder as an heir at law of her husband.The second exception questions the correctness of his findings.I agree with the master.Unquestionably the undisposed-of remainder is property and a part of his estate.Not having been disposed of by the testator, it descended to those whom the law designated as his heirs at law, if he has any, and there can be no question as to the fact that the wife surviving the husband is one of such heirs.

No living man can have heirs, but as soon as he dies he then may have heirs, and who such heirs are will be determined at the date of his death.M. E. Busby survived her husband, D. B. Busby, and was therefore entitled to one-half of whatever estate or property he was seized and possessed of, which he had not disposed of by will or otherwise.The report of the master is so full and clear that I do not deem it necessary to cite any authorities, in addition to what he has cited.

It is therefore ordered and adjudged that the said report of the master be and hereby is confirmed and made the order and judgment of this court.

Exceptions.

The appellants except to the said decree and allege error as follows:

(1) In that his honor found as follows: "I agree with the master.Unquestionably the undisposed-of remainder is property and a part of his estate.Not having been disposed of by the testator, it descended to those whom the law designates as his heirs at law, if he has any, and there can be no question as to the fact that the wife surviving the husband is one of such heirs."

And again in holding that M. E. Busby was entitled to one-half of whatever estate or property the testator was seized and possessed, of which he had not disposed of by will or otherwise, and further in holding that the said report of the master be confirmed and made the order and judgment of this court.

The error being that his honor should have held that Mrs. M. E. Busby was entitled only to a life estate in the residue of the property not disposed of by will.

W. T. Aycock, of Columbia, for appellants.

Faucett & Johnston, of Spartanburg, Douglas McKay, of Columbia, and John J. Murray, of Charleston, for respondent.

CARTER J.

This action arose in Aiken county and comes before this court on appeal from a decree of his honor, Judge Hayne F. Rice, confirming the report of the master, Hon. Edward S. Croft, to whom the cause was referred to take the testimony and pass upon all issues.In view of the full agreed statement of facts contained in the transcript of record in the case, which is clear and satisfactory, the court adopts the same as the statement of the court:

"This action was commenced by the service of a summons and complaint on the _____ day of April, 1925, and was brought for the purpose of construing the will of D. B Busby.The complaint alleged that D. B. Busby, lately a citizen and resident of the town of Monetta, in the county of Aiken, state aforesaid, died on the 27th day of January, 1925, without issue, leaving of force and effect his last will and testament, dated September 10, 1904, wherein plaintiff, to wit, M. E. Busby, respondent herein, was named as executrix.A copy of the will was attached to the complaint.It was further alleged that the will had been duly admitted to probate in common form and that Mrs. Busby had duly qualified as executrix.It was also alleged that, subsequently to the date of the said will, testator had acquired certain personal property and numerous parcels of real estate, and 'that plaintiff is advised by her attorneys that said last will and testament of the said D. B. Busby failed to dispose of the estate in remainder in fee in said after-acquired property, and that as to the same said D. B. Busby died intestate.'

"Because of numerous uncertainties and ambiguities in the said will, it was alleged that it was necessary 'to have the same judicially construed,' in order that the executrix might intelligently execute her trust, perform her duties thereunder, and be protected therein, and that the interests of the defendants might be properly determined and safeguarded.

"The complaint then proceeded to set out numerous irregularities, uncertainties, and ambiguities as to which the opinion of the court was desired.It also set forth the names of all of the heirs of the testator, and also the names of all other persons who might be interested in the said estate.From said complaint, and the copy of the will thereto attached, it also appeared that numerous interlineations and annotations had been made on said will, all of them being, as was the will itself, in the handwriting of the testator; but said interlineations and annotations had not been attested, but many of them were dated after the date of the will.

"The summons and complaint were properly served, and all parties appeared and answered.The parties herein appearing as appellants answered, together with J. B. Johns and Kate Johns Moore; the two last-named persons, however, not being appellants.

"The answers joined in the prayer of the complaint that the court construe the will, and the issues were duly referred by an order to Edward S. Croft, master for Aiken county, who held references, at which testimony was taken.It appeared from the testimony that the interlineations and annotations above referred to, and appearing on the face of the will, had all been made after the execution of the will.Testimony was also taken to remove the ambiguities and identify certain parcels of real estate, and for other purposes not material here.The master made his report, dated January 22, 1926, in which he held, among other things, that the interlineations and notations referred to had been made since the execution of the will.To this finding no exception was taken by any party, so that the will in question, after the removal of the annotations and interlineations, reads as follows:

"' I, D. B. Busby, of sound mind, do hereby make and declare this to be my last will and testament:

"'1.All debts and expenses shall if possible be paid as promptly as possible out of the income from rents and other sources so as to avoid the sale of any of the property.If not possible, then the executor is hereby authorized to sell so much of any of the property, not bequeathed, and only so much as may be necessary to discharge said indebtedness and expense, using personal property first, then if necessary, real estate.

"'2.One-half of the lot 9.65 acres of land diagonally in front of Jeter Mitchell's at Leesville, I hereby bequeath at my death to the Evangelical Lutheran Synod of S. C., the dividing line to run perpendicularly to the R. R., and my executor to choose which part shall be the Synod's.

"'3.I hereby bequeath $50.00 at my death to Newberry College to be paid as for expenses.

"'4.The rest of my property of every description I leave to my wife, M. E. Busby, during her life to be used as her own, but subject to the following conditions:

"'(a) No real estate shall be sold except as provided for above in the expense article and also unless

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