Nash v. Gardner

• Decision Date: 29 September 1954
• Docket Number: No. 16914,16914
• Citation: 226 S.C. 165,84 S.E.2d 375
• Court: South Carolina Supreme Court
• Parties: K. C. NASH, Appellant, v. Hattie GARDNER, Respondent.

Page 375

84 S.E.2d 375

226 S.C. 165

K. C. NASH, Appellant, v. Hattie GARDNER, Respondent.

No. 16914.

Supreme Court of South Carolina.

Sept. 29, 1954.

Robinson, Robinson & Dreher, Columbia, E. C. Dennis, Jr., Darlington, for appellant.

Tison & Tison, Hartsville, for respondent.

TAYLOR, Justice.

This appeal involves construction of the will of the late William H. Gardner and comes from the following agreed statement of facts:

William H. Gardner died in 1926 leaving a will dated April 8, 1919, and leaving surviving him his widow (who died intestate in 1942) and nine children, of whom respondent is one. The testator had a tenth child, Samuel, who died in 1922, leaving no wife or children surviving.

The case involves the ownership of a tract of three hundred acres, more or less, and known as the Home Place, which in the will of the above named testator was given to the son Samuel, subject to limitations contained in the will.

The provisions of the will pertinent to this case are items number Sixth, Fourteenth and Fifteenth. Appellant claims ownership of a fee simple title to the whole of said tract of land known as the Home Place. The title upon which appellant thus relies is the result of conveyances under which Etson Gardner acquired title to the property and conveyed the same to appellant, Nash. Respondent claims that by these conveyances and under the will Etson Gardner and consequently his grantee, Nash, only acquired eight-ninths of the property, the remaining one-ninth being vested in respondent, Hattie Gardner.

The case was referred for the taking of testimony and came on for hearing before Honorable J. Woodrow Lewis, Resident Judge of the Fourth Judicial Circuit, who rendered his opinion wherein he found against the contentions of appellant and held that the respondent, Hattie Gardner, owned a one-ninth interest in the property, and awarded her judgment in the sum of $2,205.55 as her share of compensation for appellant's use of the land and for waste claimed to have been committed by appellant.

Notice of intention to appeal from such decree was duly served and filed.

The defendants Powe and Guy are not concerned with any of the issues involved in this case since it is stipulated that the mortgages to them mentioned in the pleadings and in the testimony involve an indebtedness of less than $2,000, and have been assigned to Samuel Want, Attorney, and that the assignee disclaims any lien upon or interest in the one-ninth interest in the property herein claimed to be owned by the respondent, Hattie Gardner.

The will under consideration reads as follows:

'State of South Carolina

'County of Chesterfield

'In the name of God, Amen:

'I William H. Gardner, of Darlington County, do make, ordain, publish and declare this as and for my last will and testament--hereby revoking all wills and instruments of a testamentary nature heretofore by me made.

'First: I commit my soul to the gracious God who gave it and direct that my body shall be decently interred according to the rites of the Baptist Church and that a suitable monument be erected to mark my grave and that all expenses incurred therefor be paid out of my estate.

'Second: I will and direct that my executors hereinafter named shall pay all my just debts with the first money coming into their hands.

'Third: To my wife Ola Gardner, I give and bequeath to her so long as she remains my widow an ample and sufficient support of which shall be derived from my real and personal property and I further give and bequeath to my wife Ola Gardner full control my houses and twenty acres of land situated in Town of Bethune, S. C., for her benefit and the benefit and education of my minor children so long as she remains my widow but when she remarries or at her decease the said house and twenty acres of land shall belong to my son, William H. Gardner, Jr., that he shall be the sole owner of the same. Said house is known as the house I purchased from J. C. Curtis.

'Fourth: I give and bequeath to my son Etson Gardner one hundred and sixty acres of land known now as my Segars tract of land bound on the North by lands of W. L. McCoy formerly known as the Hearson land on the east by the Estate lands of Austin Gaston and lands of W. H. Gardner, on the west by lands of S. W. Blackwell, South by my home tract of land. I also give my son Etson Gardner four hundred dollars in money and our mule.

'Fifth: I give and bequeath unto my son Norman Gardner one hundred and four acres of land known as the Austin Caston land bound on the east by lands of J. E. Davis North-east of lands Z. M. Blackwell on the south by lands of the estate of Mrs. Lou Watkins, west by lands of W. L. McCoy. I also give and bequeath unto my son, Norman Gardner forty-six acres of land. Same being a part of the Alex Dunlap land providing that my son Norman Gardner shall pay my son Etson Gardner five hundred dollars in money as his share in said land and if for any reason Norman shall fail to pay Etson the money five hundred dollars, Etson to have the said land providing he pays Norman five hundred dollars.

'Sixth: I give and bequeath unto my two sons Samuel and Miller Gardner, my home tract of land on which I now reside containing about two hundred and fifty acres together with my tract of land known as my Watkins place containing about one hundred and sixty acres, to be divided equally between them according to valuation. It is further my will and desire that all my sons shall have equal privilege of my swamp lands for pasturing purposes provided that each of them shall go equal share in keeping up the fences and when one of them shall fail in helping to bear his share in the upkeep of the said swamp lands as pastures, his share and privilege in said swamp lands shall cease and revert back to those who do keep the same in repair.

'Seventh: I give and bequeath unto my daughter, Kate Gardner, my tract of land known as the Lou Watkins place in Darlington County containing about twenty-five acres providing that the said Kate Gardner shall well and truly pay to my daughter Daisy Bradshaw the sum of three hundred dollars in money. It is further my will and desire that if the said Kattie Gardner shall fail to pay the said Daisy Bradshaw the sum of three hundred dollars as above set forth inside of four years from the date of the probating of this will the said tract of land shall be advertised and sold to the highest bidder and after Daisy Bradshaw shall have been paid the said sum of three hundred dollars and the expense of said sale shall have been paid the balance of the proceeds of the sale of the said land shall be paid to my daughter Kattie Gardner or her lawful heirs.

'Eighth: I give and bequeath unto my daughter Mary Blackwell one thousand dollars in money.

'Ninth: I give and bequeath unto my daughter Julia Blackwell the sum of Two Hundred dollars in money.

'Tenth: I give and bequeath unto my daughter Daisy Bradshaw the sum of Two Hundred dollars in money.

'Eleventh: I give and bequeath unto my daughter Hattie Gardner the sum of Eight hundred and fifty dollars in money.

'Twelfth: It is my will and desire that my tract of land in Chesterfield County, Alligator Township in the State of South Carolina, known as my Curtis place be advertised and sold according to law and out of the proceeds of said sale the money herebefore mentioned shall be paid and balance of the proceeds of said sale if any there be shall belong and be paid over to my son W. H. Gardner, Jr., when he shall become twenty-one years of age.

'Thirteenth: I give and bequeath to each of the following daughters a milk cow, Julia Blackwell, Daisy Bradshaw and Hattie Gardner and if there should be no cow I desire and provide that they have property or money to the value of a cow.

'Fourteenth: It is further my will that when the provisions as heretofore mentioned has been complied with and all moneys paid as is before mentioned and provisions made for the marking of my wife Ola Gardners grave with stone, if there is any money or property real or personal remaining or belonging to my estate I give and bequeath the same to my four youngest sons, namely, Etson Gardner, Samuel Gardner, Miller Gardner, and W. H. Gardner, Jr.

'Fifteenth: It is further my will and desire that if any of my children mentioned in this will shall die without having any lawful heirs their part of my estate shall revert back and belong to the heirs then living. It is further my will and desire that...