Green v. Green

• Decision Date: 27 May 1947
• Docket Number: 15951.
• Citation: 42 S.E.2d 884,210 S.C. 391
• Parties: GREEN et al. v. GREEN et al.
• Court: South Carolina Supreme Court

42 S.E.2d 884

210 S.C. 391

GREEN et al. v. GREEN et al.

No. 15951.

Supreme Court of South Carolina

May 27, 1947

Appeal from Common Pleas Circuit Court of Florence County; L. D. Lide, Judge.

Suit by Clyde C Green and others against S. Charles Green, Jr., and others to procure the judicial construction of a certain part of will of John A. Green, deceased, and for other relief. Judgment for plaintiffs and defendants appeal.

The order of Judge LIDE, requested to be reported follows:

This suit in equity was instituted for the purpose of procuring a judicial construction of a certain part of the will of John A. Green, deceased, relating to certain real estate in the Town of Lake City, county and state aforesaid, and for other incidental purposes, including the partition of the land in question, if the will should be construed in accordance with the allegations of the complaint. All proper parties are before the court. The defendant, S. Charles Green, Sr., has answered denying the construction of the will as set forth in the complaint and alleging a contrary interpretation. The infants have answered by their duly appointed guardian ad litem. All the other defendants have made default. There being no substantial controversy as to the facts, the cause was submitted to me by counsel for the respective parties upon the pleadings and the will in question, and after hearing full oral argument the same was taken under advisement.

John A. Green, late of the county and state aforesaid, died some time prior to October 31, 1916, leaving in full force and effect his last will and testament, dated October 31, 1912, which was duly admitted to probate on October 31, 1916, in the Court of Probate for Florence County. The will makes certain provisions for the maintenance and support of testator's widow, Aramintha Elizabeth Green, and his sister, Rebecca Simms, both of whom died in the year 1928, so that the testamentary provisions in their behalf now constitute no charge upon the estate.

The language of the will relating specifically to the property in question in the instant suit is as follows:

'At the death of my said wife I give, devise and bequeath unto my beloved daughter, Mary Aline;

'First. All and singular, my undivided right, title and interest in to and out of all those certain lots of land situate on West Acline Avenue, in the Town of Lake City whereon are now situate the buildings occupied by the Smith-Williams Company R. F. Taylor and Company, the Whitehead Drug Company and the Bank of Lake City, said interest being an undivided one half interest therein as co-partner with my said executor Asbury H. Williams, M. D.;

'To have and to hold the same unto the said Mary Aline Green, free from all trust, for and during the term of her natural life at her death to be equally divided between the lawful issue of her body, and should she die without lawful issue of her body, then do I give, devise and bequeath the same unto my said two sons, John Otis and Samuel Charles, as tenants in common thereof, for and during the term of their natural lives and at their deaths to be equally divided between the lawful issue of their bodies, said issue to take per stirpes.'

Mary Aline Green, testator's daughter mentioned in the foregoing excerpt from the will, was married to one Major, but subsequently died 'without lawful issue of her body,' and hence the property involved passed to the testator's two sons above mentioned, to wit, John Otis Green and Samuel Charles Green (sometimes referred to in the pleadings as S. Charles Green, Sr.), ' as tenants in common thereof, for and during the term of their natural lives and at their deaths to be equally divided between the lawful issue of their bodies, said issue to take per stirpes.' (Emphasis added.)

Counsel for the plaintiffs contend that these words mean that John Otis Green and Samuel Charles Green each took a life estate only, with remainder over to their children in fee simple; while counsel for the defendants contend that each of them took an estate in fee conditional, sometimes called an estate in fee simple conditional.

If the will contained nothing more, by way of devise or bequest, then the quoted excerpt, or if the court were justified in construing the same separately from the other language contained in the will, there could be no doubt whatever, in my opinion, that a fee conditional estate was thereby devised. The word 'issue,' which is essentially the same as 'lawful issue,' is a word of extensive signification and generally embraces the whole line of lineal descendants to the remotest generation, in indefinite succession, who take by inheritance, and not as purchasers. Hence, ordinarily where an estate is devised or granted to a person for his natural life and after his death to his issue, the devisee or grantee, under the Rule in Shelley's Case, takes an estate in fee conditional. (And it will be remembered that the statute abolishing the Rule in Shelley's Case, Section 8802, Code 1942, has no application, since the will was executed prior to October 1, 1924.)

Unquestionably then, in my judgment, if the language above quoted from the will is construed according to the technical meaning of the words, it constitutes a devise in fee conditional, under the Rule in Shelley's Case, because the devise is for life and then to the lawful issue of the bodies of the first takers; indeed it would be a typical illustration of the operation of the time honored rule. And the super-added words, 'to be equally divided between the lawful issue of their bodies, said issue to take per stirpes,' as appears from the authorities, are not in themselves sufficient to destroy the technical significance of the words of limitation.

See Whitworth v. Stuckey, 1 Rich.Eq. 404; Simms v. Buist, 52 S.C. 554, 30 S.E. 400; Davenport v. Eskew, 69 S.C. 292, 48 S.E. 223, 104 Am.St.Rep. 798; Davis v. Dalrymple, 163 S.C. 490, 161 S.E. 738; Antley v. Antley, 132 S.C. 306, 128 S.E. 31; and Lucas v. Shumpert, 192 S.C. 208, 6 S.E.2d 17.

But in the construction of a will the primary purpose of the court is to arrive at the intention of the testator as expressed in his will considered as a whole, and notwithstanding the use of technical terms, presumably employed in their technical sense, this intention must be given effect, unless contrary to some rule of law.

And, in arriving at the intention of the testator the court is governed by certain subsidiary rules which must always be kept in mind, to wit: (a) if the testator has used words that ordinarily have a technical significance, such as 'heirs,' 'heirs of the body,' 'issue,' 'lawful issue' and the like, and these words are not otherwise defined or explained in the will, the court is required so to construe the will as to give effect to the legal meaning of such terms; (b) the fact that after the use of technical terms like 'heirs,' 'heirs of the body,' 'issue,' etc., there are superadded words such as those above quoted, the same standing alone would not abrogate the ordinary meaning of the words of limitation; (c) but these words of limitation may be, and are sometimes (indeed rather often), used by a testator in the non-technical or popular sense, and if it so appears from the terms of the will or instrument itself that this was the intention of the maker thereof, such intention will be given effect.

The following quotation from a recent work appears to be quite appropriate:

'The meaning expressed by the language employed in a conveyance is to be derived from reading such conveyance as an entirety. Each sentence or paragraph is a single element in one whole. It is reasonable to infer that their complimentary or modifying force upon each other was intended by the conveyor and this inference must be given effect by the construer * * *. So also the meaning of each clause or part of the instrument is to be determined in the light of all aid as to the intended meanings of words or phrases derivable from their uses elsewhere in the same instrument, or derivable from other dispositions contained in the instrument.' Restatement of the Law, Property, Vol. 3, p. 1198.

However, our own cases lay down the controlling principle in language equally clear and unequivocal. One of these cases is that cited and relied on in the oral argument before me by counsel for the plaintiffs, to wit: Rowe v. Moore, 89 S.C. 561, 72 S.E. 468, 470, in which the well considered decree of Judge Shipp (based expressly upon consideration of the entire will before him) was unanimously adopted by the Supreme Court. I quote the following brief excerpt from this decree:

"It is true that the rule in Shelley's case is still binding authority in South Carolina, but when it appears that the words 'heirs,' 'heirs of the body,' or 'issue' are so qualified by additional words in the will as to evince an intention that they are not to be taken as descriptive of an indefinite line of descent, but are used to indicate a new stock of inheritance, the rule in Shelley's case does not apply."

It will be observed that the particular devise which was before the court in the case from which the foregoing excerpt was taken was contained in item ten of the will, while the qualifying or explanatory words upon which the court relied were in other items of the will; hence I quote the following additional excerpt from Judge Shipp's decree:

"It is clear to my mind that the testator used the words 'heirs of the body' in the sense of children in item three, and it would be against reason to hold that the testator used the words 'heirs of his body' in the sense of children in item three, and in other items of the same will, in making devises to others of his children uses the words 'heirs of her body' in any...