Davis v. Davis

• Decision Date: 18 March 1946
• Docket Number: 15819.
• Citation: 37 S.E.2d 530,208 S.C. 182
• Parties: DAVIS et al. v. DAVIS et al.
• Court: South Carolina Supreme Court

37 S.E.2d 530

208 S.C. 182

DAVIS et al. v. DAVIS et al.

No. 15819.

Supreme Court of South Carolina

March 18, 1946

A. J. Hydrick and W. B. Martin, both of Orangeburg for appellants.

J Carl Kearse, of Bamberg, and Felder & Rosen, of Orangeburg, for respondents.

TAYLOR Justice.

This appeal comes to this court from the Court of Common Pleas of Orangeburg County for the purpose of construing the will of Rivers F. Murden, a bachelor who died August 17, 1942 leaving his property to four nephews and one niece namely: B L. Davis, a son of a predeceased sister by the name of Letha Davis; Walter K. Davis, a son of a predeceased sister, Mary Davis, W. T. Murden and A. J. Murden, Jr., sons of a predeceased brother, W. T. Murden, Sr., and Connie Turner, a daughter of his brother, A. J. Murden who is still living. The nephew B. L. Davis was named as executor of the will.

Mrs. Corrie Davis and Mrs. Medrue Davis, wives of B. L. Davis (the named executor and a beneficiary) and W. K. Davis (a beneficiary), respectively, were two of the witnesses to the execution of the will. B. L. Davis, as executor and in his own right, together with the other beneficiaries named in the will instituted an action in the Court of Common Pleas to have the will construed and to fix the rights of the parties thereunder.

Sec. 8919, S.C.Code of Laws 1942, is as follows: 'No subscribing witness to any will, testament or codicil shall be held incompetent to attest or prove the same by reason of any devise, legacy or bequest therein in favor of such witness, or the husband or wife of such witness, or by reason of any appointment therein of such witness, or the husband or wife of such witness, to any office, trust or duty; and such devise, legacy or bequest shall be valid and effectual, if otherwise so, except so far as the property, estate or interest so devised or bequeathed shall exceed in value any property, estate or interest to which such witness, or the husband or wife of such witness, would be entitled upon the failure to establish such will, testament or codicil; but, to the extent of such excess, the said devise, legacy, or bequest, shall be null and void; and such appointment shall be valid, if otherwise so, but the person or persons so appointed shall not, in such case, be entitled by law to take or receive any commissions or other compensation on account thereof.'

Appellants contend that it is clear that the testator did not intend to die intestate and that such intention should control. To construe a will in conformity with the intention of the testator is much favored by the courts but such intention cannot prevail when in conflict with some statute or rule of law. While the expression of such intention may be laid hold of to enlarge doubtful dispositions it cannot supply the place of actual disposition expressed or reasonably to be implied. Smith v. Heyward, 115 S.C. 145, 105 S.E. 275; Peay v. Barber, 1 Hill.Eq. 95; Glover v. Harris, 4 Rich.Eq. 25; Cheves v. Haskell, 10 Rich.Eq. 534-540.

It is therefore clear that the beneficiaries, B. L. Davis and W. K. Davis, can take no more than they would have gotten had the testator died intestate. Appellants contend however that this portion over and above that which they would receive had the testator died intestate should go to the three remaining devisees under the residuary clause contained in item 8 of the will which reads as follows: 'I direct my executor to liquidate all my notes, bonds, mortgages, from the proceeds pay the State, County and City taxes for 1942 upon all my property, also State and Federal inheritance taxes, then all the remainder of my estate, both real and personalty, I direct to be equally divided, according to value between my following nephews and niece, Balmer Lee Davis, A. J. Murden, W. T. Murden, Walter Davis, and Connie Turner, share and share alike.'

This presents the question of whether a void devise and legacy, which is part of the residuary clause of a will, pass under the remaining portion of the same residuary clause or whether it becomes intestate property and distributable to the heirs at law of the testator?

To the rule that a general residuary clause will carry lapsed or ineffectual bequests of personal property; and also devises of real estate, there is the...