McGirt v. Nelson

• Decision Date: 12 July 2004
• Docket Number: No. 3844.,3844.
• Citation: 599 S.E.2d 620,360 S.C. 307
• Court: South Carolina Court of Appeals
• Parties: James McGIRT, as Personal Representative of the Estate of Bessie P. Haile, Appellant, v. Richard H. NELSON, Ivan Nelson, Anthony L. Nelson and Don H. Nelson, II, Respondents.

360 S.C. 307

599 S.E.2d 620

James McGIRT, as Personal Representative of the Estate of Bessie P. Haile, Appellant, v. Richard H. NELSON, Ivan Nelson, Anthony L. Nelson and Don H. Nelson, II, Respondents.

No. 3844.

Court of Appeals of South Carolina.

Heard March 10, 2004.

Decided July 12, 2004.

W. Steven Johnson and William M. Reynolds, III, both of Columbia, for Appellant.

Arthur C. McFarland, of Charleston; Veronica G. Small, of North Charleston; for Respondents.

PER CURIAM:

In this action, James McGirt, as personal representative of the Estate of Bessie P. Haile ("the Estate"), appeals the order of the circuit court construing the last will and testament of Richard H. Haile, Jr. We affirm.

FACTS

The Estate brought an action in probate court for a declaratory judgment construing the terms of Richard's last will and testament, particularly regarding the proper ownership of Richard's business upon the death of his wife, Bessie. After the case was removed from the probate court to the circuit court, the parties submitted the matter for adjudication on briefs and joined together in submitting a stipulation of facts. Those relevant to the determination of this case are as follows:

1. Richard executed his last will and testament on May 27, 1971.

2. Richard died testate on December 25, 1976.

3. Richard was survived by his wife of 40+ years, Bessie, and his daughter, Sylvia L. Haile (Sylvia H. Nelson at the time of Richard's death).

4. Sylvia died testate on September 24, 1996.

5. The last will and testament of Sylvia devised her estate to her sons, Richard, Ivan, Anthony, and Don Nelson (collectively, "Respondents").

6. Bessie died testate on May 26, 2001.

7. The last will and testament of Bessie makes each Respondent a $1,000 bequest and devises the rest and residue of her estate to Ralph Haile, the un-adopted child of her and Richard.

8. At the time of Richard's death, he owned an unincorporated business known as Haile's Funeral Home ("the business"), which provided funeral services to the public of Kershaw County.

This case hinges on the construction of Richard's last will and testament. The provisions of this document relevant to the determination of this case are as follows:

Item II: I will, devise and bequeath my business to my wife, [Bessie], and my daughter, [Sylvia], to share and share alike.

Item III: It is my desire that Haile's Funeral Home be maintained and operated under the name of Haile's Funeral Home.

Item IV: In the event my wife, [Bessie], or my daughter, [Sylvia], should predecease the other in death, then the survivor shall inherit the whole.

Item V: I so direct that my wife, [Bessie], during her life, is vested with full discretion in the operation, control and style of [the business] and I so direct that my said wife, [Bessie], shall file a written accounting, at the beginning of each fiscal year, indicating the profit and expenses of the business and at that time pay to my daughter, [Sylvia], her proportionate share in accord with her pro rata interest in the business.

Item IX: All the rest and remainder of my estate, both real and personal, of whatever kind or nature and wheresoever situated, I will, devise and bequeath unto my beloved wife [Bessie], and my beloved daughter, [Sylvia], to share and share alike.

Respondents claim they own a one-half interest in the business by way of their mother's will. The Estate claims sole ownership of the business by virtue of Item IV of the will and the death of Sylvia before Bessie. The circuit court found Richard Haile's will vested a one-half interest in the funeral home business to each Bessie and Sylvia. The court further found that Sylvia's interest in the business was properly transferred to Respondents. The Estate now appeals.

STANDARD OF REVIEW

This appeal involves stipulated and undisputed facts; therefore this court is free to review whether the trial court properly applied the law to those facts. WDW Props. v. City of Sumter, 342 S.C. 6, 10, 535 S.E.2d 631, 632 (2000). We are under no obligation in this case to defer to the trial court's legal conclusions. See J.K.Constr., Inc. v. W. Carolina Reg'l Sewer Auth., 336 S.C. 162, 166, 519 S.E.2d 561, 563 (1999).

LAW/ANALYSIS

The Estate contends the lower court erred in construing Richard's Will, particularly the survivorship language in Item IV. We disagree.

It is the cardinal rule of will construction that the testator's intent should be ascertained and followed unless it violates some well-established rule of law. See People's Nat'l Bank of Greenville v. Harrison, 198 S.C. 457, 461, 18 S.E.2d 1, 3 (1941); Wates v. Fairfield Forest Prods. Co., 210 S.C. 319, 322, 42 S.E.2d 529, 530 (1947). In ascertaining the testator's intent, effect must be given to every part of the will. If possible by any reasonable interpretation, "all clauses must be harmonized with each other and with the will as a whole." Shevlin v. Colony Lutheran Church, 227 S.C. 598, 603, 88 S.E.2d 674, 677 (1955).

In Richard's will, the business was devised upon his death to Sylvia and Bessie to "share and share alike." When read alone, this is an unambiguous and absolute grant of half of the business to each. The Estate contends, however, that the language in Item IV cut down this absolute grant to either a joint tenancy with right of survivorship, a life estate with cross remainder, or a fee simple subject to shifting executory interest.¹

While the language in Item IV contemplates the possibility of either Bessie or Sylvia predeceasing the other, we do not believe Richard intended this language to cut down the devise of Item II into something less than an absolute grant. "[W]here an estate or interest is given in words of clear and ascertained legal signification, it shall not be enlarged, cut down, or destroyed by superadded words in the same or subsequent clauses, unless they raise an irresistible inference that such was the intention." Schroder v. Antipas, et al., 215 S.C. 552, 556, 56 S.E.2d 354, 355 (1949) (quoting Adams, et al. v. Verner, 102 S.C. 7, 11, 86 S.E. 211, 212 (1915)). "[A]n estate devised in fee cannot by subsequent language be stripped of its legal incidents, and where it appears that the controlling intention is to give an absolute estate, subsequent language inconsistent therewith must be held ineffective." Rogers v. Rogers, 221 S.C. 360, 368-369, 70 S.E.2d 637, 641 (1952). In some circumstances, an absolute grant may be cut down by subsequent language in a will. However, this subsequent language must be "at least as clear in expressing that intention as the words in which the interest is given." Johnson v. Waldrop, 256 S.C. 372, 376, 182 S.E.2d 730, 731 (1971) (quoting Walker v. Alverson, 87 S.C. 55, 68 S.E. 966 (1910)). Words of doubtful import following a gift made in clear and unequivocal terms cannot cut down or qualify that gift. See Johnson, 256 S.C. at 376,182 S.E.2d at 731; Wates v. Fairfield Forest Prods. Co., 210 S.C. 319, 322, 42 S.E.2d 529, 530 (1947).

In reviewing Item IV, it appears Richard intended either Bessie or Sylvia to...