Love v. Love
| Decision Date | 14 May 1946 |
| Docket Number | 15838. |
| Parties | LOVE v. LOVE et al. |
| Court | South Carolina Supreme Court |
R. B. Hildebrand and John M. Spratt, both of York Charles B. Elliott, of Columbia, and J. Means McFadden, of Chester, for appellant.
J M. Wise and Charles W. McTeer, both of Chester, for respondents.
This appeal requires a construction of the will of William M Love, late of the county of Chester, and the codicil thereto. The case was tried in the circuit court on the pleadings and on an agreed statement of facts.
William M. Love, the testator, died on or about March 13, 1926. He left of force a will dated March 6, 1916, and a codicil thereto executed ten years later, on January 18, 1926.
At the time of the execution of the will, the wife of the testator Mamie E. Love, was living, but before the execution of the codicil she had died. When the will was made, in 1916, the testator had two children: his sons, Samuel Glenn Love, the appellant here, and Robert C. Love, Sr.; and two grandchildren: William C. Love, the respondent, and Robert C Love, Jr., these two grandsons being the children of Robert C. Love, Sr. The sons and grandsons were living at the time of the execution of the codicil, in 1926, and survived the testator. When the will was executed, and later the codicil, the sons of the testator were married. Samuel Glenn Love has never had children. One of the grandsons above mentioned, Robert C. Love, Jr., died intestate; Robert C. Love, Sr., died August 19, 1943.
The will, omitting formal parts, is as follows:
'Sec. 1st. I will and bequeath and devise my house and lot on Pinckney Street in which I now live, together with all household and kitchen furniture, to my beloved wife Mamie E. Love during her lifetime, and at her death, I will and devise this house and lot and all household and kitchen furniture to my children, Robert Carter Love and Samuel Glenn Love, or their bodily heirs.
'Sec. 3rd. I will and bequeath and devise all my medical books, instruments and office furniture to my son, Samuel Glenn Love, all other tools together with book case I will, bequeath and devise to my son, Robert Carter Love.
The property involved in this appeal includes the house and lot in the city of Chester, on Pinckney Street, a farm of two hundred seventy one and 35/100 acres, more or less, with improvements thereon; and personal property, passing under the residuary clause, with an appraised value of approximately eighty thousand dollars, in all of which the appellant claims an absolute one half interest.
The first question presented by the appeal has to do with the house and lot in the city of Chester which was disposed of under Section 1 of the will. The codicil, which will later be referred to, cancelled the life estate given to the wife of the testator in this section, she having died between the dates of the execution of the two instruments. In construing this provision, the language to be considered then is, 'to my children, Robert Carter Love and Samuel Glenn Love, or their bodily heirs.'
The circuit judge struck from the clause the word 'or' and inserted in place of it the word 'and,' thereby making the devise read: 'to my children, Robert Carter Love and Samuel Glenn Love, and their bodily heirs.' As reconstructed, it was then adjudged that Robert Carter Love, Sr., and Samuel Glenn Love acquired a fee simple conditional rather than a fee simple estate.
The contention of the appellant, Samuel Glenn Love, is that the words, 'or their bodily heirs,' are words of substitution; that the intention of the testator, as clearly expressed in this clause, was that his children, Robert C. Love, Sr., and Samuel Glenn Love, should take a fee simple title if they survived the testator; and that in case neither of them survived the testator the 'bodily heirs' of the one so dying, should take under the will by substitution; that both sons having survived the testator, they acquired a fee simple title in equal shares; in other words, that alternative interests were created.
The court held, in accordance with the contention of the respondent, that the word 'or' was not used in its disjunctive sense, but should be construed as having been used conjunctively as 'and'. It was also held that the substitution of 'and' for 'or' carried into effect the intention of the testator, an intention which is apparent from a reading of the will.
While it is true that the courts have not hesitated to construe 'or' as 'and' when necessary to effectuate the testator's intention (Albergotti v. Summers, 205 S.C. 179, 31 S.E.2d 129, and cases cited therein; also see Wood v. Wood, 132 S.C. 120, 128 S.E. 837), we do not think that in this case such a construction is authorized.
There is nothing in the devise which calls for the application of artificial rules in order to discover the testator's intention. In grammatical construction, the devise is clearly and correctly expressed; it is so definite in its terms that only one meaning can reasonably be derived from it. The devise points unmistakably to an alternative gift and with equal certainty to the intended alternative beneficiaries. Nor does a contrary intention appear from an examination of the other sections of the will. It is clear that the testator was undertaking to provide for the contingency which would arise should one or both of his sons predecease him. Inasmuch as the two sons survived the testator, no such contingency arose.
In Heyward v. Heyward's Ex'rs, 28 S.C. Eq. 289, 7 Rich.Eq. 289, the court had under construction a similar clause: 'Provided that N. do pay unto my brother T., or his heirs, the sum of five thousand pounds * * *.' It was there held that the word 'or' should be construed in its primary, natural and disjunctive sense, the court saying: 'The usual and natural construction of the word or is disjunctive (f): and we are to construe the words of every testator in their ordinary and natural sense, unless there is something in the context to impose a different meaning on them, or, unless there is something in the nature of the interest created, taken in connection with the operation of the other parts of the will, which would defeat the clear legal intention, were the usual interpretation given.' To the same effect is Anderson v. Smoot, 17 S.C. Eq. 312, Speers Eq. 312, and Simpson v. Cherry, 34 S.C. 68, 12 S.E. 886.
In construing a will, the rule requires that it be read in the ordinary and grammatical sense of the words employed, unless some obvious absurdity or some repugancy or inconsistency with the declared intention of the testator, as abstracted from the whole will, should follow from so reading it. Following this course a construction may be adopted avoiding its consequences.
But we see nothing in the context of the will here not in harmony with the construction we have given it. The two sons of the testator at the time of his death were his only heirs, and evidently were the primary objects of the testator's bounty. Having survived him, they took under Section 1 of the will a fee simple title to the Pinckney Street property, in equal shares.
We next consider the issue arising under Section 4 of the will, which reads as follows: 'I will, bequeath and devise that the balance of my entire estate, consisting of real estate, bond stocks, mill stocks, fire insurance, stocks, notes, mortgages, accounts and all other credits that I may die possessed of, be equally divided between my children, Robert Carter Love and Samuel Glenn Love, or their bodily heirs.'
The property left in this section, after the execution of the codicil, constituted the entire personal estate of the testator, which, as hereinabove stated, was appraised at approximately Eighty Thousand Dollars. The alternative provision, 'or their bodily heirs,' appearing in this section of the will, is identical with the one we have just considered, appearing in Item One.
The appellant contends that the plain meaning of this section is that the two children of the testator, Robert C. Love, Sr., and Samuel Glenn Love, having survived the testator, acquired absolute title in equal shares; that the provision, 'or their bodily heirs,' is plainly substitutional, and that the 'bodily heirs' under the circumstances acquired nothing. It is argued that the words, 'or their bodily heirs,' found in Section 1 and in Section 4 of the will, should be given the same construction.
Item 4 of the will, which is a general residuary clause, expressly provides in specific language, that the property therein devised 'be equally divided between my children, Robert Carter Love and Samuel Glenn Love, or their bodily heirs.'
In construing this section, the lower court held that the testator intended to provide for his two grandsons, and to make them the immediate objects of his bounty. And it was...
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