Klugh v. U.S.
| Decision Date | 17 November 1978 |
| Docket Number | No. 77-1678,77-1678 |
| Citation | 588 F.2d 45 |
| Parties | Margaret KLUGH, Katherine Klugh Maultsby, Mary Klugh Garner, John Bradley Klugh, William W. Bradley, III, Frederick H. Bradley, Patrick H. Bradley, Edna Bradley Troxell, Hugh W. Bradley, Mabel Bradley Payne, Mary Bradley Pressly, Thomas R. Bradley, William T. Bradley, Margaret Bradley Poole, Davis W. Bradley, John T. Bradley, Jr., Frances K. Bradley, Mark E. Bradley, Jr., Elizabeth Bradley McGarity, Robert F. Bradley, III, Thomas J. Bradley, Frances Wright Bradley, III, Mary Bradley Brown, Rufus A. Johnson, III, William R. Bradley, II, Margaret Bradley Shuford, Arthur L. Bradley, James B. Bradley, Curtis L. Bradley, Davis J. Wardlaw, Martha Wardlaw Buie, Forest Bradley Wardlaw, Jr., Ivey Jean Wardlaw Pressly, Robert S. Wardlaw, William W. Wardlaw, Mildred E. Wardlaw, John U. Wardlaw, Mary Wardlaw Deason, Annie Wardlaw Wright, Frances M. Wardlaw, John K. Bradley, Mary Bradley Miller, Martha Bradley Moody, Frances Trenholm Bradley, Jane H. Bradley, Martha B. Mayo, Robert F. Bradley, JTIUNITED STATES of America, certain lands located in Abbeville, Greenwood and McCormick Counties, South Carolina, being a portion of the estate of W. K. Bradley, Deceased, and the United States Department of Agriculture, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. Fred Buzhardt, Beaufort, S. C. (Barry L. Johnson, Dowling, Dowling, Sanders & Dukes, Beaufort, S. C., Joseph O. Rogers, Jr., Rogers, Riggs & Rickenbaker, Sumter, S. C., on brief), for appellants.
Carl Strass, Atty., Dept. of Justice, Washington, D. C. (James W. Moorman, Acting Asst. Atty. Gen., Washington, D. C., Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., James D. McCoy, III, Asst. U. S. Atty., Greenville, S. C., Edmund B. Clark and James R. Arnold, Attys., Dept. of Justice, Washington, D. C., on brief), for appellees.
Before WINTER, BUTZNER and HALL, Circuit Judges.
The principal question in this appeal is the meaning of the will of W. K. Bradley of South Carolina who died on December 30, 1881 with respect to the persons in whom the fee of his real property vests. The question arises because certain of the testator's lineal descendants claim that, as devisees under the will, they have property interests in land previously owned by him which were not validly acquired by the United States in several condemnation proceedings undertaken in 1936-39 pursuant to §§ 7 and 8 of the Weeks Act, 16 U.S.C. §§ 516, 517, 517a. The condemnation proceedings were ineffective to acquire their interests, they allege, because they were not parties to the proceedings nor did they consent to the condemnations. In their suit against the United States, they sought return of their property and also an accounting for its use since the date of the purported taking.
The district court interpreted the will to vest the remainder in fee twenty-one years after the death of the testator; and since all of the persons having any interest in the property under that construction were parties to the condemnation proceedings and offered no contest, it granted summary judgment for the government. We do not think that under the will the fee will vest until twenty-one years after the death of the survivor of the children and grandchildren of the testator, living at his death, to whom he devised successive life estates.
Anticipating that this might be the decision we reach concerning the meaning of the will, the United States also asserts that (a) the suit is barred by limitations, and (b) the consent of minors, unknown persons and persons unborn who may have an interest in the property need not be obtained in order for the property to be condemned validly. We conclude that it would be premature for us to pass upon these questions until another question that we perceive, but which has not been briefed or argued by the parties, is resolved. Accordingly, we reverse the judgment of dismissal and remand the case to the district court for further proceedings.
W. K. Bradley died on December 30, 1881; his will was dated December 8, 1881. He was survived by his widow, Sarah Frances Wideman Willis Bradley; his five children, John E., Robert Foster, George Clarence, William Tatum and Sarah Frances Bradley Thomson; and twelve grandchildren. Of this group, the last to die was Annie Elizabeth Bradley Wardlaw, a granddaughter. She died January 21, 1967.
The pertinent portion of the will, the text of which is set out in the margin, 1 left the testator's real property and mills to his wife and children "to be theirs and for their use and benefit for life, and after their death to go to their children and on down as far as the law will allow." Although the will did not establish a formal trust and name trustees, it provided for the management of the property, gave the heirs the right to occupy the property upon paying rent, and provided for an annual distribution of the net income of the estate to each member of the family entitled thereto. The testator directed that the estate "shall be perpetuated in my family," and he forbade both the sale of any portion of the property and application of the distributive share of the annual net income to satisfy the debts of any member of the family.
The estate included many acres of land, some of which was cultivated, some of which was pasture land, and some of which was improved by buildings and dwelling houses.
In 1910, the will was interpreted by the Court of Common Pleas of Abbeville County, South Carolina. At that time the testator's widow had died, as had three of his five children. One of his deceased children had left a widow who instituted the litigation, and another of the deceased children had left surviving him "numerous children, some of whom were not in being when the testator died." Bradley v. Bradley, Court of Common Pleas, Abbeville County, South Carolina, decree entered September 30, 1910 (unreported). In the suit, the widow sought a partition and division of the estate and an accounting of the yearly income alleging that, under the South Carolina rules of intestate succession, she had succeeded to her husband's interest and to his share of the interest of his mother and his sibling who died without issue, both of whom also died intestate. The Court ruled otherwise, holding:
The testator, as is shown by a consideration of the Will, intended to devise the whole of his estate and to die intestate as to none of it; and there is an entire lack of evidence necessary to overcome the presumption against partial intestacy.
The strongest and most conclusive ground, however, is the very evident intention of William K. Bradley to perpetuate the estate in his family as far as possible, and to create the life estates sub-ordinate and sub-servient to this purpose. In construing the terms of a Will, the obvious intention of the testator, provided it is not inconsistent with an established rule of law or repugnant to public policy, always controls. . . .
The intention of the testator herein expressed is neither inconsistent with established rules of law nor repugnant to public policy. The life estates were devised to the heirs-at-law "to be theirs and for their use and benefit for life, and after their death to go to their children and on down as far as the law will allow." In case a life-tenant dies without leaving children, the life tenancy merges again in the common property, and the widow or widower as the case may be, takes no interest. If there are any children they share as representatives of the parent. Any other construction would defeat the clearly apparent intention of the testator.
Accordingly, the South Carolina court decreed an accounting of the net income of the estate with distribution to be made one-third (1/3) to each of the testator's two surviving children and one twenty-first (1/21) to each of the seven children of the deceased child of the testator who died with issue.
Some of the lands of the estate were condemned by the United States in 1936 (164.40 acres, part of a total condemnation of 1,744.10 acres in McCormick County, S.C.), in 1937 (2,003.70 acres, part of a total condemnation of 4,177.30 acres in Greenwood and McCormick Counties, S.C.), and in 1939 (1,074.20 acres, part of a total condemnation of 1,922.10 acres in McCormick and Abbeville Counties, S.C.) to establish a national forest. The condemnations were conducted under §§ 7 and 8 of the Weeks Act, 16 U.S.C. §§ 516, 517 and 517a, one of the provisions of which is that the United States shall Not acquire lands under that Act "until the legislature of the State in which the land lies shall have consented to the acquisition of such land . . . ." South Carolina did consent to the condemnation, S.C.Code § 3-1-410, but its consent was conditioned upon "the consent of the owner . . . (as to) any building, dwelling house or cultivated or pasture lands."
In the instant case, plaintiffs alleged that most of the condemned lands fit into the category requiring individual owner consent. It is apparently not disputed that those of the adult lineal descendants of the testator who had life estates at the time of the several condemnation proceedings consented, at least to the condemnation of their life estates, but it is claimed that they did not consent to the condemnation of their undivided interest, if any, in the contingent remainder in the fee. The government makes no claim that guardians or legal representatives of unknown or unborn heirs were named and served in the condemnation proceedings, but it does assert that publication of the desire of the United States to acquire the lands against "unknown, nonresident or minor" owners was made pursuant to S.C.Code § 28-7-10.
Although the exact number and the identities of the present holders are not clear in the record before us, it appears also that, if the will is interpreted not to vest the fee until 21 years after the...
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