Miller v. Rogers

• Court: South Carolina Supreme Court
• Writing for the Court: BUSSEY; It is contended by the respondents, and was held by the lower court, that under the foregoing language the children of the testator living at the date of his death and his grandson; TAYLOR
• Citation: Miller v. Rogers, 246 S.C. 438, 144 S.E.2d 485 (S.C. 1965)
• Decision Date: 17 September 1965
• Docket Number: No. 18400,18400
• Parties: Edward W. MILLER, Rogers Miller and Mary Miller, Appellants, v. Charles W. ROGERS, Elizabeth R. Airth, Neva R. Radford, Winston J. Rogers, Lena R. Hall, J. D. Garden, Olive Gandy Rogers, William W. Rogers, Ralph F. Rogers, Louise V. Rogers and Elizabeth R. Ingram, Respondents.

Page 485

144 S.E.2d 485

246 S.C. 438

Edward W. MILLER, Rogers Miller and Mary Miller, Appellants, v. Charles W. ROGERS, Elizabeth R. Airth, Neva R. Radford Winston J. Rogers, Lena R. Hall, J. D. Garden, Olive Gandy Rogers, William W. Rogers, Ralph F. Rogers, Louise V. Rogers and Elizabeth R. Ingram, Respondents.

No. 18400.

Supreme Court of South Carolina.

Sept. 17, 1965.

Tison & Tison, Bennettsville, Robinson, McFadden & Moore, Columbia, for appellants.

Paulling & James, Sam Rogol Darlington, for respondents.

BUSSEY, Justice:

This action sought construction of the last will and testament of Winston J. Rogers, as well as certain incidental relief. The appeal is from an order of the circuit court, confirming the construction given to said will by the special referee. No question of incidental relief is here involved.

The testator, a resident of Darlington County, was apparently possessed of a substantial estate, though the total value of such estate does not appear in the record. He died testate on October 5, 1932, his will being dated September 30, 1929. Testator was twice married, having by his first wife six children and by his second wife none. In 1929, when his will was executed, five of his children were still living; one, Neva Rogers Garden, had died on November 12, 1912, leaving surviving her an only child, J. D. Garden. On the date of the will, testator's second wife, Mary D. Rogers, was fifty years of age. Testator's age does not appear in the record, but other facts therein would clearly indicate that testator was considerably older than his second wife. In his will he made substantial, though not equal, provision for each of his children, as well as his grandson, J. D. Garden, and his wife Mary D. Rogers. All of testator's children living at the time of the execution of the will were still living at the time of his death, but between that date and the death of his widow, Mary D. Rogers, in January 1962, three more of his children died, one of them childless and unmarried.

The instant controversy arises out of item II of the will which reads as follows:

'I give, devise and bequeath unto my beloved wife, Mary D. Rogers, my plantation on which I now reside, containing 245 acres, more or less, for and during the term of her natural life and at her death, I direct that said plantation be sold by my Executors, or the survivor of them, hereinafter named and the proceeds of said sale to be divided between my living children and the children of any deceased child, share and share alike.'

It is contended by the respondents, and was held by the lower court, that under the foregoing language the children of the testator living at the date of his death and his grandson, J. D. Garden, took a vested interest in remainder in the proceeds of the sale of the tract of land in question. Under that construction either a per capita or per stirpes distribution of the proceeds would reach the same result.

The appellants contend that this construction is incorrect; that the children of the testator living at his death took only a contingent remainder, as opposed to a vested remainder, and that it was the intention of the testator that the proceeds be divided, on a per capita basis, between his children who were still living upon the death of the life tenant and the children of any deceased child or children of the testator.

The conclusion of the special referee was predicated, primarily though not solely, on the rule that the law favors the vesting of estates at the earliest time possible, not inconsistent with the intent of the testator. This rule was stated and discussed, correctly we think, in Faber v. Police, 10 S.C. 376, 386, as follows:

'Questions of this kind are involved in no little difficulty and uncertainty, owing mainly, as we think, to the efforts which the Courts have made to construe limitations so as to constitute vested instead of contingent remainders, the rule being, as stated by Kent (4 Com. 203), that 'the law favors vested estates and no remainder will be construed to be contingent which may, consistently with the intention, be deemed vested.' This rule, by its very terms, admits, as it should do, the paramount importance of the intention of the testator which must necessarily override every other rule and be the governing principle, otherwise the Court instead of the testator would make the will.' (Emphasis added.)

It is fundamental and well established in this state that, while there are certain rules of construction to be followed in seeking the intent of a testator, they are all subservient to the paramount consideration of determining what was meant or intended by the terms used in the will, the cardinal rule of construction being to ascertain and effectuate the intention of the testator, unless that intention contravenes some well settled rule of law or public policy.

It seems to us the controlling question here is what the testator meant by the terms 'my living children' as used in item II of his will. The testator used the word 'living' to qualify the word 'children', and the conclusion of the referee apparently did not fully take into consideration the intent or meaning of the quoted words, as used by the testator.

While there are cases from other jurisdictions construing the words here under consideration, which have arrived at varying results, dependent upon the facts and the entire contents of the particular wills involved, no case from this jurisdiction has been cited or come to our attention wherein this court has been called upon to construe these particular words when used in the context which they were here used by the testator. The nearest case in point is that of Roundtree v. Roundtree, 26 S.C. 450, 2 S.E. 474, wherein the testator directed that the remainder be equally divided, share and share alike, between his 'surviving children'. We quote the following from the opinion in that case.

'It seems to us that the controlling question is as to what the testator meant...