Key v. Weathersbee

• Decision Date: 29 March 1895
• Citation: 21 S.E. 324,43 S.C. 414
• Parties: KEY et al. v. WEATHERSBEE et al.
• Court: South Carolina Supreme Court

21 S.E. 324

43 S.C. 414

KEY et al. v. WEATHERSBEE et al.

Supreme Court of South Carolina

March 29, 1895

Appeal from common pleas circuit court of Barnwell county; J. J Norton, Judge.

Action by James Key and others against Charlce Ann Weathersbee and others to obtain a construction of a will. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

The following are the decree of the lower court, and exceptions thereto:

"This action was brought for the partition of the real estate of Bethaney Moore, deceased. The cause came on to be heard before me at Barnwell at the March, 1894, term of the court of common pleas for that county. The plaintiffs allege in their complaint that the said Bethaney Moore left a last will and testament, and two codicils thereto, which have been duly admitted to probate, and which contain devises to Floyd W. Weathersbee and Charlce Ann Weathersbee, his wife; and it is further alleged that, because the said Floyd W Weathersbee is a witness to the said will and codicils, he can take nothing under the same, he not being an heir at law of the testatrix; and it is further alleged that, the devises to the said Charlce Ann Weathersbee (who is an heir at law of the testatrix) being of greater value than the interest that she would take in the said estate as an heir at law, it follows such devises to her are null and void; and it is then alleged that, there being no particular estate to support the remainders which are devised to Bessie, Jane B., and James Moore Weathersbee, the same are defeated, and partition is asked of the real estate left by the testatrix the same as if there had been no last will and testament. The answer of the defendants deny that the plaintiffs have any interest in the said estate, and it is further alleged in the answer that even if the devise to Floyd W. Weathersbee is forfeited under the statute, and that the estate devised to Charlce Ann Weathersbee is in part forfeited under the statute, the remainder to James Moore and Bessie are not defeated, but, to the contrary, are thereby accelerated, and vest at once.

The case is presented mainly upon an agreed statement of facts, and I find therefrom as follows: That Bethaney Moore died in the early part of the year 1890, leaving a last will and testament and two codicils thereto, which were duly admitted to probate in the court of probate for Barnwell county; that Floyd W. Weathersbee is one of the subscribing witnesses to said will and each of the codicils; that the plaintiffs and the defendant Charlce Ann Weathersbee are the heirs at law of the testatrix, and as such would be interested in her estate in the proportion set forth in the complaint; that Floyd W. Weathersbee is not an heir at law of the testatrix, but the husband of the defendant Charlce Ann Weathersbee, and Bessie, Jane B., and James Moore Weathersbee are the children of Floyd W. and Charlce Ann Weathersbee, and they are the grand nieces and nephew of Bethaney Moore. The will, as modified by the codicils, contains the following devises, namely: To Floyd W. Weathersbee and Charlce Ann, his wife, is given a life estate in the testatrix's home place and the Darlington place, to have and to hold the same in common between themselves for and during the term of their natural lives, and, should one survive the other, the whole shall remain in such surviving one during the term of his or her natural life. At the death of the survivor of the said Floyd W. Weathersbee and Charlce Ann the homestead place is devised in fee to Bessie Weathersbee, and the Darlington place and the Dickes place is at the same period devised to the said James Moore Weathersbee. By the fifth clause of the will all the rents and profits arising from the Dickes place which may accrue between the death of the testatrix and the death of the survivor of the said Floyd W. and Charlce Ann is devised to the said Bessie, Jane B., and James Moore Weathersbee, to be equally divided between them; Floyd W. and Charlce Ann Weathersbee taking no beneficial interest in the Dickes place. A legacy of two hundred dollars in gold is given to the said Bessie Weathersbee, and directed to be used in purchasing a piano for her when she arrived at the age of twelve years, or sooner if the executors of the will saw fit to do so. A legacy of nine hundred and fifty dollars is given to the said Charlce Ann Weathersbee and her said children Bessie, Jane B., and James Moore Weathersbee. Under this provision the said Charlce Ann takes one-fourth of the nine hundred and fifty dollars; and one-fourth of the said amount goes to each of the said children. The balance of testator's property, after the legacies are paid, is devised to Floyd W. and Charlce Ann Weathersbee.

Under these facts the plaintiffs allege, as above stated, that the will is practically superseded by the statute law of this state (section 1991 of the Revised Statutes [New Ed.]); that there is no precedent estate to support the remainder in the real estate; that Floyd W. Weathersbee takes nothing, and Charlce Ann, his wife, only as much as she would take under the statute as heir at law, and not under the will. But I hold to the contrary, that the statute provides that "such devise, legacy and bequest shall be valid and effectual *** 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, *** but to the extent of such excess the said devise, legacy or bequest shall be null and void." It is clear, under section 1991, that the devise to Floyd W. Weathersbee is void, and that the devise to Charlce Ann Weathersbee, his wife, is void as to the excess of such devise over and above what she would take as heir at law; but to that extent it is valid, and she takes

the same under the will. It appears that the said Charlce Ann would be entitled to the one twenty-fifth (1/25) part of the entire estate as heir at law, and to that extent her devise under the will is valid. The agreed facts are not sufficiently full for me to ascertain the value of the estate, and it will be necessary to refer the case to the master to ascertain such value.

The ascertained will of the testatrix is contained in the written instrument as admitted to probate. It can be defeated only by enforcing the forfeiture pronounced by the statute on account of Floyd W. Weathersbee being a subscribing witness thereto. This will be done so as to inflict as little injury as possible upon innocent third parties who were the objects of the testatrix's bounty, and interfere no more with the terms of the will than necessary to meet the requirements of the law. In my judgment, that is fully done in declaring as forfeited all that Floyd W. Weathersbee would take under the will, and in cutting down the estate and legacy to Charlce Ann to an amount equal in value to what she would have taken as heir at law of the testatrix, which we have seen amounts to one twenty-fifth (1/25) part of the estate. It is manifest from the will that the reason why the testatrix postponed the enjoyment of the estate left to her grand nephew and nieces was because she supposed that the devise of the life estate to Floyd W. and Charlce Ann Weathersbee was valid. Such life estate, being defeated wholly as to Floyd W. Weathersbee, and in part as to Charlce Ann, will not, on that account, destroy the remainder to their children, but the effect is, the life estate being out of the way, the remainders are accelerated, and vest at once in the children. It cannot be doubted that the testatrix postponed the enjoyment of the estate left to the grand nephew and nieces solely because she desired the parents to have a life estate. Now, it matters not how the life estate falls in, whether by the death of the life tenant or by the forfeiture under the statute; in either case the remainder-man takes as soon as the life estate ceases to exist. This construction seems to me sound upon principle, and is supported elsewhere by the most respectable authority. The reasoning in the case of Jull v. Jacobs, 3 Ch. Div. 709, cited by defendants' counsel, meets my hearty approval; and the case of Woodbery v. Collins, 1 Desaus. Eq. 424, while not in point, yet shows the inclination of our courts to construe the statute the same as the English courts have done. See, also, 20 Am. & Eng. Enc. Law, 895, where the case of Jull v. Jacobs is cited with full quotation. But, whatever view I might entertain as to the argument presented by the plaintiffs' counsel, I could not interfere with the testatrix's disposition of the Dickes place, the whole beneficial interest in which is devised to other than those against whom the law inflicts its penalties; nor of the two hundred and fifty dollars given to Bessie Weathersbee, nor of at least three-fourths of the nine hundred and fifty dollars given to the children of the said Charlce Ann.

It is therefore ordered, adjudged, and decreed that the vested d remainder of Bessie Weathersbee in the homestead place and of James Moore Weathersbee in the Darlington place be, and the same are hereby, declared accelerated as to the whole or any part of the life estate not required to make up to the said Charlce Ann Weathersbee the one twenty-fifth part in the value of the testatrix's estate. It is further ordered and adjudged that it be referred to the master of Barnwell county to ascertain and report the total value of the real and personal estate left by the said Bethaney Moore, deceased, and how much thereof has been expended in the payment of the expenses of

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