Peecksen v. Peecksen

• Decision Date: 31 July 1945
• Docket Number: 15761.
• Citation: 34 S.E.2d 787,211 S.C. 543
• Parties: PEECKSEN et al. v. PEECKSEN et al.
• Court: South Carolina Supreme Court

34 S.E.2d 787

211 S.C. 543

PEECKSEN et al. v. PEECKSEN et al.

No. 15761.

Supreme Court of South Carolina

July 31, 1945

Nathan Rosen, of Charleston, for appellants.

Frank H. Bailey, Legge & Gibbs, and John I. Cosgrove, all of Charleston, for respondents.

OXNER, Justice.

This action was brought for the purpose of having the Court construe the will of J. N. Peecksen, who died on November 20 1941, leaving of force the following as his last will and testament, which was executed on July 26, 1938:

'All my real estate and personal property I will to my children Lloyd, Hattie, Ray, Willie, John and my granddaughter Harriet and in case of their death, their part to go to their children and so on; to be carried on the same as I have done. Any property that is mortgaged to be cared for the same as I have; with the exception of Race & Rutledge Ave. (south east corner) and 37 and 39 Race St. that I leave to Ray P Stevens to cover a mortgage. All insurance policies' have on my children and grand children to be kept up and turned into the estate when they become due. Anytime my heirs see an advantage to sell, this may be done by all agreeing. If a son should die and leave a widow but no children, then the widow shall receive his share, as long as she remains the widow Peecksen. At her death, her share shall go back to the estate. In case of death of grand children, if no children survive them, their share to come to the estate. All are to share and share alike. My heirs are to serve with out bond. I leave my three sons, Lloyd, Willie, and John as executors and my daughters, Hattie and Ray as executrix.'

At the time of his death, the testator was a widower in his seventies. Three sons and two daughters survived him, namely J. Lloyd Peecksen, John N. Peecksen, William F. Peecksen, Ray P. Stevens, and Hattie P. Weeks. All five of these children are named in the will as devisees and were appointed by the testator as executors and executrices thereof. The testator had one other child, Wyatt P. Stevens, who predeceased him leaving one child, Harriet, the granddaughter referred to in the first sentence of the will. These five children and the grandchild referred to would have constituted his sole heirs at law and distributees had he died intestate. At the time of the testator's death, J. Lloyd Peecksen and John N. Peecksen were married but had no children, William F. Peecksen was unmarried, Ray P. Stevens was married and had one child, and Hattie P. Weeks was married and had three children. One daughter, Ray P. Stevens, died on February 15, 1944, which was subsequent to the death of the testator, and left surviving one child. John N. Peecksen now has one child who was born after the death of the testator. The testator, therefore, had at the time of his death five grandchildren, one of whom was the child of a daughter who had predeceased him.

The testator's estate consisted almost wholly of real property situated in the City of Charleston, where he resided. This real estate was appraised at $110,000. He left only a small amount of personalty.

All persons who now have, or in the future may have or claim, any interest in the estate under the terms of the will, or otherwise, were made parties to the action so that there could be a complete adjudication of all possible interests in the estate. It may not be amiss to state that the issues involved do not arise from any personal differences or animosities amongst the parties. The action was brought to remove any uncertainties relating to the construction of the will and those who were to take thereunder. Although the action may be termed a 'friendly' suit, all those having any possible interest in the estate have been ably represented by counsel who have zealosly sought to protect their rights. The case was referred to the Master for Charleston County. In reference to the second and third sentences of the will, the Master found as follows:

'The second sentence of the will reads as follows: 'Any property that is mortgaged to be cared for the same as I have; with the exception of Race and Rutledge Avenue (southeast corner) and 37 and 39 Race St. that I leave to Ray P. Stevens to cover a mortgage.' I find that by this sentence, it was the intention of the testator that his mortgaged property, other than the property mortgaged to Ray P. Stevens, be protected from foreclosure by the payment of taxes, insurance and interest, and that this direction was purely advisory. However, the intention of the testator is clear that the property at Race and Rutledge Avenue, and 37 and 39 Race Street, which said property is encumbered by a mortgage from the testator to Ray P. Stevens, dated October 18, 1928, and recorded in the R. M. C. Office for Charleston County in Book H-35 at page 105, be devised to the said Ray P. Stevens in fee simple in full satisfaction of the said mortgage indebtedness.

'The next sentence in the will reading, 'All insurance policies I have on my children and grandchildren to be kept up and turned into the estate when they become due,' according to the evidence refers to policies of insurance issued by the Penn Mutual Insurance Company. The insureds named in these policies are Harlie H. Stevens, the younger, and Harriet E. Stevens, and the beneficiary thereof was Mrs. Ray P. Stevens, the mother of Harlie and the stepmother of Harriet. As the testimony shows that the testator had no interest in these policies, his reference to them is surplusage.'

There were no exceptions by any of the parties to the construction placed by the Master on the foregoing portion of the will, it being conceded that the construction adopted is the correct one. The Master further held that it was the intention of the testator to name his five children as executors and executrices of his will who were to serve as such without bond. There is also no exception to this portion of the report of the Master.

The Master further found that 'it was the intention of the testator to devise in fee simple all of his (other) real estate and personal property to his children, Lloyd, Hattie, Ray, Willie, John and his granddaughter, Harriet E. Stevens, provided these named devisees should be alive at the death of the testator.' As all these devisees survived the testator, the Master recommended that the will be construed as vesting such property on the death of the testator in fee simple in the children and grandchild named, as tenants in common, in equal proportions. Exceptions were duly filed by certain of the parties to this portion of the report of the Master. The case was duly heard in the Circuit Court on these exceptions and the Circuit Judge filed an order overruling all exceptions and affirming the report of the Master. From this concurrent holding of the Master and Circuit Judge, the wives of J. Lloyd Peecksen and John N. Peecksen, the child of John N. Peecksen, and the children of Hattie P. Weeks have appealed. They contend that the proper construction of the will as a whole 'is that the testator devised all of his real estate and personal property to his named children and granddaughter Harriet for life, and at their death to their children, but should a son die leaving a widow, without children, his share would pass to her for life or so long as she shall remain the widow Peecksen, with remainder to the estate of J. N. Peecksen, deceased.'

The construction of the first clause of the will when considered apart from the other clauses presents little difficulty. The devise there is to the testator's children and his 'granddaughter Harriet and in case of their death, their part to go to their children and so on; to be carried on the same as I have done.' There being nothing in this clause indicating a contrary intent, the phrase 'in case of their death' refers to the death of a devisee in the lifetime of the...