King v. South Carolina Tax Commission, 19022

• Decision Date: 05 March 1970
• Docket Number: No. 19022,19022
• Citation: 253 S.C. 646,173 S.E.2d 92
• Parties: Florrie B. KING, as Executrix of the Estate of Leonard S. King, Respondent, v. SOUTH CAROLINA TAX COMMISSION et al., Appellants.
• Court: South Carolina Supreme Court

Page 92

173 S.E.2d 92

253 S.C. 646

Florrie B. KING, as Executrix of the Estate of Leonard S King, Respondent, v. SOUTH CAROLINA TAX COMMISSION et al., Appellants.

No. 19022.

Supreme Court of South Carolina.

March 5, 1970.

Atty. Gen. Daniel R. McLeod, and Asst. Attys. Gen. Joe L. Allen, Jr., and G. Lewis Argoe, Jr., Columbia, for appellants.

Shand & Lide, Hartsville, for respondent.

LEWIS, Justice.

This action for declaratory judgment involves the constitution of the will of Leonard S. King, deceased, to determine the nature of the estate devised therein to his wife, Mrs. Florrie B. King.

Mr. King left an estate subject to the South Carolina estate taxes. Mrs. King as executrix of her husband's will, filed an estate tax return with the South Carolina Tax Commission in which she claimed the marital deducation provided for by Section 65--455 of the 1962 Code of Laws. The deduction was claimed on the basis that her husband's will devised to her a fee simple, non-terminable, title to his estate. The Tax Commission disallowed the claimed deduction, taking the position that Mrs. King was devised only a life estate under the will, and assessed the tax on that basis. This action was subsequently brought by Mrs. King against the Tax Commission and all other interested parties to have the will construed so as to resolve the controversy relative to the tax liability of the estate. The lower court construed the will as devising a fee simple title to the wife, from which only the Tax Commission has appealed.

The will was executed by both Mr. and Mrs. King and recited in the first paragraph that it was made 'as and for our joint Last Will and Testament.' The will then provided as follows:

'Item 1. We hereby direct the executor or executrix of the estate of us to pay all of our just debts and funeral expenses out of the first moneys coming into their respective hands, and to erect markers on our graves.

'Item 2. We hereby give, devise and bequeath all of the rest, residue and remainder of our property of every sort and description and wheresoever situate unto the survivor of us.

'Item 3. Upon the death of the survivor of us, we hereby give, devise and bequeath such rest, residue and remainder of our property as follows: * * *.' (The remaining portion of this item is made up of sub paragraphs 'a' and 'b' which name those to whom such remainder shall go. Under 'a', one half of such remainder is devised to the brothers and sisters of Mr. King and, under 'b', the other one half is given to nieces, nephews, and brothers of Mrs. King). (Item 4 names the executor or executrix of the will and is the concluding item).

The parties agree that the sole question to be decided is whether under the terms of the foregoing will a fee simple title or only a life estate was devised to the wife.

The lower court construed Item 2 of the will as 'an absolute devise in fee simple to the survivor'; and interpreted Item 3 'as merely passing so much of the assets which may remain at the death of the survivor to those persons named as devisees, in the event that the survivor has not executed a new will prior to her demise, or in the case both testators met with simultaneous deaths.' The will was accordingly construed 'as creating a fee simple, nonterminable, interest' in the survivor, Mrs. King. We disagree.

The primary purpose in construing a will is to determine from the entire instrument the intent of the testators as expressed in the words used. Such intent, when so found, must be given effect unless it contravenes some well settled rule of law or public policy. We cannot consider the will piecemeal; but must attribute due weight to all of its language, giving effect to every part, if under a reasonable interpretation, all of the provisions can be harmonized with each other and with the will as a whole. Wates v. Fairfield Forest Products Co., Inc., 210 S.C. 319, 42 S.E.2d 529; Rogers v. Rogers, 221 S.C. 360, 70 S.E.2d 637; Shevlin v. Colony Lutheran Church, 227 S.C. 598, 88 S.E.2d 674.

Equally well settled is the rule that 'when a gift is made in...