Epting v. Mayer
| Decision Date | 20 September 1984 |
| Docket Number | No. 0324,0324 |
| Citation | 283 S.C. 517,323 S.E.2d 797 |
| Court | South Carolina Court of Appeals |
| Parties | Chloe EPTING, Respondent, v. Janie E. MAYER, E.E. Epting, Jessie E. Koon, Ruby E. Davis, Lucille E. Barrier, Mildred E. Davis, Elberta E. Metts and Ralph E. Epting, Defendants, of whom Mildred E. Davis, Ruby E. Davis, Jessie E. Koon, Lucille E. Barrier and Elberta E. Metts are Appellants. . Heard |
Eugene L. Brantley and Thomas B. Jackson, III of Brantley & Jackson, P.A., Columbia, for appellants.
Joseph W. Hudgens of Pope & Hudgens, Newberry, for respondent.
This appeal involves the construction of a devise in a will. The question we review is what estate is devised to respondent Chloe Epting by Item V of Mahalie Cummings Epting's will? Item V states:
I will, devise and bequeath unto my two daughters, Eula Epting and Chloe Epting, all real estate of which I may die seized and possessed, to have and to hold in fee simple absolute and in case of the death of either of my said two daughters, then to the survivor of the two, and in the event my said two daughters should die without issue, either before or after my death, then and in that event the said property shall go to my two sons, J. Cornelius Epting and Quincy A. Epting, share and share alike, and in case either or both of my said sons should die before my said two daughters, then and in that event, the child or children of either or both of them shall take the portion their parent or parents would have taken if they had been alive at the said time.
Mahalie Cummings died in 1939 leaving four children, Chloe, Eula, J. Cornelius, and Quincy A. Chloe is the only living child. Eula died unmarried and without children. J. Cornelius was survived by three children and Quincy A. was survived by five. Chloe brought this action naming her eight nieces and nephews as defendants alleging she had received an offer to buy the timber on the land devised in Item V and further alleging the timber was infested with insects and would soon lose its value. Chloe asked the court to define "the extent and nature" of her title under Item V. Quincy A.'s children answered denying title in Chloe and seeking either an injunction against removal of the timber or protection of the proceeds. The trial court found Mahalie Cummings gave Chloe a fee simple estate and further found the language of defeasance in the same sentence repugnant to the conveyance. Quincy A.'s children appeal. We affirm.
On this appeal our jurisdiction is limited to the correction of errors of law. The guiding principles for this task were well summarized by our Supreme Court in Rogers v. Rogers, 221 S.C. 360, 70 S.E.2d 637, 641 (1952):
There is no doubt of the soundness of the rule to the effect that a bequest or devise in terms sufficient to unequivocally give the property absolutely or in fee will not be deemed cut down by subsequent language which is less clear and distinct than that of the original gift ... It is equally well settled that an estate devised in fee cannot by subsequent limitation be stripped of its legal incidents, and where it appears that the controlling intention is to give an absolute estate, subsequent language inconsistent therewith must be held ineffective. ...
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