Guaranty Bank & Trust Co. v. Byrd

• Decision Date: 13 January 1928
• Citation: 292 S.C. 187,355 S.E.2d 529
• Court: South Carolina Supreme Court
• Parties: GUARANTY BANK & TRUST COMPANY as substitute trustee under the Will of R.P. Byrd, dated

Page 529

355 S.E.2d 529

292 S.C. 187

GUARANTY BANK & TRUST COMPANY as substitute trustee under

the Will of R.P. Byrd, dated January 13, 1928, Respondent, v. R.P. BYRD, Jr., Individually and as Executor of Carrie Mae

L. Byrd, Deceased, Thomas Edward Byrd, Joanne Byrd Mathers,

Redden P. Byrd, III, Edward L. Young, John E. Lunn,

Dusenbury, Dusenbury & McKenzie Legal Enterprises, Inc.,

Milton E. Grusmark, Epworth Children's Home (Epworth

Orphanage), Claude V. Brown, Trustee of the George S. Byrd

Lands, Pee Dee Production Credit Association, The Citizens

and Southern National Bank of South Carolina, and John Doe

and Mary Roe, as Minor and Unknown, Unborn, Incompetent

Remaindermen Under the Will of R.P. Byrd dated January 13,

1928, and Eugene Fallon, Jr., Esquire, Representing John Doe

and Mary Roe as unknown, Unborn and Incompetent, Contingent

and Unknown Remaindermen, Defendants, of whom Epworth

Children's Home is Petitioner,

and

R.P. Byrd, Jr., Thomas Edward Byrd, Joanne Byrd Mathers,

Edward L. Young, John E. Lunn, Dusenbury,

Dusenbury & McKenzie, and Milton E.

Grusmark, are also Respondents.

No. 22649.

Supreme Court of South Carolina.

Heard Oct. 9, 1986.

Decided Dec. 29, 1986.

Rudolph C. Barnes, William C. Stork, both of Barnes, Alford, Stork & Johnson; Albert L. Moses, of Lumpkin and Sherrill, Columbia; and John R. Chase, of Coleman, Aiken and Chase, Florence, for petitioner.

E.N. Zeigler, of Zeigler, McEachin & Graham, Florence, for respondent Guar. Bank and Trust Co.

Elizabeth A. Carpentier, Charles W. Knowlton, and J. Donald Dial, all of Boyd, Knowlton, Tate and Finlay, Columbia, for respondents R.P. Byrd, Jr., Thomas Edward Byrd, Joanne Byrd Mathers, Edward L. Young, John E. Lunn, Dusenbury, Dusenbury & McKenzie, and Milton E. Grusmark.

W. Reynolds Williams, Florence, for defendants Edward L. Young and John E. Lunn.

Richard G. Dusenbury; and Bernard D. Dusenbury, Florence, for defendant Dusenbury Dusenbury & McKenzie Legal Enterprises, Inc.

Marvin P. Jackson, Jr., Florence, for defendant Claude V. Brown.

John L. McGowan and L. Franklin Elmore, Florence, for defendants Pee Dee Production Credit Ass'n and The Citizens and Southern Nat. Bank of South Carolina.

Eugene A. Fallon, Jr., Florence, for defendants John Doe and Mary Roe.

F. Lee Morgan, Jr., Florence, for defendant Eugene Fallon, Jr.

M. Glenn Odom, Florence, Guardian ad Litem for John Doe.

GREGORY, Justice:

This is an action to construe a will. Petitioner Epworth Children's Home holds a contingent remainder interest in a trust created by the will of R.P. Byrd, Sr. The Court of Appeals affirmed the trial court's finding that the remainder interest in question should pass by intestacy. Guaranty Bank and Trust Co. v. Byrd, 287 S.C. 96, 337 S.E.2d 231 (Ct.App.1985). We disagree.

R.P. Byrd, Sr., died testate in 1928. His will established a lifetime trust for each of his two sons, George and R.P., Jr. George died childless in 1981 survived only by his wife and his brother, R.P., Jr.

Item 3 of the will disposes of the remainder interests in the sons' lifetime trusts as follows:

Should the said beneficiaries or either of them die leaving an [sic] wife and a child or children then the title to the property hereinbefore provided for them shall vest in fee simple in his or their heirs, provided, however that should the wife of either, or both of said beneficiaries die leaving no issue, child or children on [sic] my said son or sons, then the wife or wives of either of the said beneficiaries to be vested with only a life estate in the property hereinabove provided for my said sons, respectively, with remainder over, after their death to the Official Board of Epworth Orphanage, an institution of the Methodist Church located at Columbia, S.C., to have and to hold the same in fee simple for the benefit of the said institution. (Emphasis added).

This poorly drafted sentence has spawned years of litigation. Epworth claims that under the provided however...