Matthews v. Clark

• Decision Date: 30 June 1916
• Docket Number: 9418.
• Citation: 89 S.E. 471,105 S.C. 13
• Parties: MATTHEWS v. CLARK ET AL.
• Court: South Carolina Supreme Court

89 S.E. 471

105 S.C. 13

MATTHEWS v. CLARK ET AL.

No. 9418.

Supreme Court of South Carolina

June 30, 1916

Appeal from Common Pleas Circuit Court of Lexington County; Frank B Gary, Judge.

Suit to construe a will, by J. L. Matthews, administrator, against Corrie Clark and others. From a decree, respondents appeal. Affirmed.

The decree appealed from is as follows:

This suit was instituted for the purpose of obtaining an authoritative construction of the will of George C. Clark late of Lexington county, who died in November, 1910. When the pleadings were all made up and filed, there had been injected into the case issues not contemplated by the complaint, although entirely proper and timely. The issues so injected are: "Is the widow of the testator entitled to both the legacy left her by the terms of the will and dower also, and has the widow by accepting the legacy waived her right to claim dower?" Judge De Vore decided all the issues in the case except those just referred to. He made an order directing the clerk of this court to take the evidence and report the same to the court on these issues, especially reserving them for further adjudication. The clerk reported the testimony so taken, and these reserved issues are now before me for adjudication.

The law governing the case is certain and familiar, but the difficulty arises in the application of the facts of the case to law that has long been settled, both in England and in this country.

In Gordon v. Stevens, 2 Hill Eq., 46, 27 Am. Dec. 445 the law is stated to be that: "The widow's right of dower is one with which the law invests her, and over which the husband has no control. He can neither dispose of it by contract in his lifetime, nor direct the disposition of it after his death by will or otherwise. She can only be deprived of it by her own act or voluntary consent. The husband has, however, the unquestionable right to annex to the dispositions of his other property, by will, any condition he may think proper, which is not in itself against the law. He may therefore make it the condition of a legacy to his wife that she shall renounce her dower or declare that it shall be in lieu or bar of her dower, and, if she accept it, it must necessarily so operate. It seems to be universally agreed, too, that although no such condition or declaration is expressed in the will she will not be entitled to both the legacy and the dower, if retaining her dower would be inconsistent with the provisions of the will and defeat the intention of the testator."

The case of Cunningham v. Shannon, 4 Rich. Eq. 135, is to the same effect, and holds that "every devise which a husband makes of land upon which his wife's right of dower attaches is presumed to be made subject to the right of dower, unless the contrary appears on the face of the will in express words, or by the strongest kind of implication." This is undoubtedly the law.

What are the facts of this case? What was the intention of the testator? Does it appear by the strongest kind of implication or by express declaration that it was the intention of the testator that the legacy to the wife was to be in lieu and bar of her dower? These questions must be answered in view of the language of the will and the surrounding circumstances.

The testator had a large family and his estate owed debts to the amount of $15,000. He had paid about $12,000 for his land the same being about 2,900 acres. The timber on the land had been sold and taken off, leaving the land very much less valuable than it was prior to the removal of the timber. It is very doubtful whether the wife's dower would amount to as much as the legacy in cash of $3,000, which legacy was to be derived from a sale of the land.

It will be remembered that the will was drawn by a layman--a man not skilled in the use of technical words. Giving to the language of the will the ordinary common sense meaning, it seems to me that the testator has used the strongest kind of untechnical language to indicate that the legacy should be the only interest of any kind, whether it be called a "share" or "an estate" that should be claimed by the wife. The language of the testator in the case before us makes a stronger case calling for an election by the wife than does the language in the case of Bannister v. Bannister, 37 S.C. 529, 16 S.E. 612. In the Bannister will we have no such express declaration as we have in this will, and the circumstances relied on in the Bannister Case as calling for an election are all present in this case. For similar reasons, the case before us is a stronger case demanding an election than the case of Hair v. Goldsmith, 22 S.C. 566.

The language of the will before us is: "I will that my wife Corrie Clark, be paid the sum of three thousand dollars, $3,000.00, as her full and entire share of all my personal property and real estate, out of funds provided for below." And, "It is my will and desire that my wife shall receive $3,000.00 as her full and entire share of my estate." The testator also directs that his real estate be...