Jennings v. Talbert
| Citation | 58 S.E. 420,77 S.C. 454 |
| Parties | JENNINGS v. TALBERT. |
| Decision Date | 02 August 1907 |
| Court | United States State Supreme Court of South Carolina |
Appeal from Common Pleas Circuit Court of Abbeville County; Purdy Judge.
Action by Lillie May Jennings against R. J. Talbert, individually and as executor. Decree for plaintiff, and defendant appeals. Reversed.
Wm. J Thurmond, for appellant.
Wm. N Graydon, for respondent.
Mrs Georgia A. Talbert died in September, 1900, seised of certain real estate in Abbeville county. According to her last will and testament, she willed, devised, and bequeathed certain property "to my beloved husband, Dr. R. J. Talbert, during the term of his natural life, investigating [investing] him with power to rent and lease said lands and building, and collect rents for the same, and I further confer upon him power to sell, make, execute and deliver titles to all singular, the property above described or any part thereof, and to distribute the proceeds of such rents and sales between my two daughters, Anna P. Robinson and Lillie May Jennings, and their heirs, share and share alike." In October, 1906, plaintiff, Lillie May Jennings, commenced this action against R. J. Talbert, individually and as executor of the estate of Mrs. Talbert, and against Anna P. Robinson, who refused to join as plaintiff. The complaint alleged concealment of the will by Dr. Talbert; that, according to its terms, he held the property in trust for plaintiff and Anna P. Robinson; that defendant Talbert had committed waste by selling timber off of said land. It demanded a judgment against him for one-half of the rents and profits of said real estate and for timber and other property disposed of; that defendant be enjoined from further waste; that he give bond for the faithful performance of his duties as trustee or be removed; and, finally, that plaintiff have judgment against him for one-half of the rents and profits of the real estate and for one-half the value of timber and other property disposed of. Defendant answered and gave notice that, upon the calling of the case, a demurrer would be made to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action, in that it appeared upon the face of the will that defendant, R. J. Talbert, had a life estate in the property. After hearing the motion, Judge R. O. Purdy refused to sustain the demurrer or construe the will, saying: "That in a case of this kind, where the language bears two constructions, it would be committing an injustice for the court to undertake to pass upon the rights of the parties without knowing something of the circumstances relating to the property or the parties." By agreement the question as to waste was omitted in this hearing. The defendant appeals.
In his conclusion we thing the circuit judge committed error. That there is some unclearness or ambiguity about the will is undeniable. Ambiguities, however, are patent and latent; the distinction being that in the former case the uncertainty is one which arises upon the words of the will, deed, or other instrument as looked at in themselves, and before any attempt is made to apply them to the object which they describe, while in the latter case the uncertainty arises, not upon the words of the will, deed, or other instrument as looked at in themselves, but upon those words when applied to the object or subject which they describe. 2 Ency. of Law, 388. Thus, where there is conflict in words or clauses of a will or other instrument, the ambiguity is patent. Where, however, there is no defect upon the face of the paper, but, when attempting to put it into effect, it appears that there is uncertainty, as for instance where there are two legatees of the same name or two pieces of property which the description fits equally well, the ambiguity is latent. In the former case the construction and intention must be derived solely from the words contained in the instrument. In the latter case parol testimony may be received to enable the reaching of a correct conclusion. 30 Ency. of Law, 678; Donald v. Dendy, 2 McMul. 130; Patterson v. Leith, 2 Hill. Ch. 17. The ambiguity here is too clearly patent to require discussion. Therefore parol testimony could not be received for enlightenment on the subject.
The words in which doubt occurs are those quoted above. It will be noticed that by the first words used an absolute estate for life is conferred upon the defendant. Continuing, the testator invests him with power to rent and lease the said lands and collect rents for the same, and, in case he saw fit, to even sell all, or any part thereof, and to distribute the...
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Schroder v. Antipas
... ... regularity in this State are: Howze v. Barber, 29 ... S.C. 466, 470, 7 S.E. 817; Jennings v. Talbert, 77 ... S.C. 454, 58 S.E. 420; Smith v. Smith, 93 S.C. 213, ... 76 S.E. 468; Lawrence v. Burnett, 109 S.C. 416, 96 ... S.E. 144; ... ...
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W.S. Gray Cotton Mills v. Spartanburg County Mills
... ... not at all follow that extrinsic circumstances may not ... develop a latent ambiguity.' In Jennings v ... Talbert, 77 S.C. 454, 58 S.E. 420, it is said: ... 'Ambiguities, however, are patent and latent, the ... distinction being that *** the ... ...
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Munn v. McWhite
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Tiencken v. Zerbst
... ... he had given the property to hold upon a declared trust in ... express terms. Jennings v. Talbert, 77 S.C. 454, ... 457, 458, 58 S.E. 420 ... [196 ... S.C. 442] Where language only conveys a desire or wish, it ... ...