Peoples Nat. Bank of Greenville v. Harrison
| Decision Date | 15 December 1941 |
| Docket Number | 15342. |
| Citation | 18 S.E.2d 1,198 S.C. 457 |
| Parties | PEOPLES NAT. BANK OF GREENVILLE v. HARRISON et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; G Dewey Oxner, Judge.
Action by the Peoples National Bank of Greenville, S. C., executor of the estate of W. C. Cothran, deceased, against Grace Smith Harrison and others for construction of a will. From an adverse judgment, defendants Bessie C. Wofford and others appeal.
Order of Judge Oxner follows:
This action was instituted by the plaintiff for the purpose of having the court construe the will of the late lamented W. C Cothran. He departed this life on June 1, 1940, leaving of force his last will and testament which was executed on March 21, 1940. The issues were referred to the master. The only testimony taken before the master was an outline of the family history. The master has made his report and the case now comes before me on exceptions by certain of the parties to the construction of the will made by the master.
The testator was a member of the Greenville Bar for almost half a century where he achieved great success in his chosen field. He was frequently appointed as Special Judge and as Acting Associate Justice of the Supreme Court of this State. In this field he also displayed unusual ability. He was never married and was the youngest of the six children of J. S. Cothran and Emma Perrin Cothran. His father, mother, and all of his brothers and sisters predeceased him. He left surviving nine nephews and nieces and eighteen great-nephews and great-nieces. One of his brothers was the late lamented T. P. Cothran, a distinguished lawyer and for years an Associate Justice of the Supreme Court.
The will of the testator consists of eleven items, in the first ten of which he makes various specific legacies and gifts to numerous parties, some of whom were related to him, and some of whom were not, but were remembered because of friendship or kindness to the testator. Most of these legacies or gifts represent disposition of personal effects, china, silver and office equipment. The monetary legacies in these ten items aggregate approximately $8,600, of which $4500 are to certain relatives as follows: To his niece, Margaret C. Holstein, of Edgefield, $500; to his great-nephew, Clarke P. Cothran $2,000 in a trust fund; and to his great-niece, Aimee Cothran, $2,000 in a trust fund. It will be observed that in the monetary legacies to relatives only one out of five nieces is remembered and only two great-nieces and great-nephews out of eighteen are remembered. The bulk of his estate, consisting of approximately $90,000, is disposed of in the residuary clause, embodied in Item 11, which is the last item in the will, and this residuary clause is as follows: "Item Eleven: After disposing of my estate as herein mentioned, should there be any balance remaining, I direct that it be equally divided between the children of my nephew, J. Allen Smith, my niece, Bessie C. Wofford, and my nieces, Emma C. McMahan and Sallie C. Lambeth."
The foregoing residuary clause is the one which the court is asked to construe.
J. Allen Smith is still living and at the time of the death of the testator, he had living seven children, whose ages ran from twenty-three to thirty-one years. Bessie C. Wofford is still living, was approximately thirty-six years of age at the time of the death of the testator and had two children, fifteen and eight years old. Mrs. Emma C. McMahan is still living, was approximately thirty-one years old and had three children, seven, two and one years old, respectively. Mrs. Sallie C. Lambeth is still living and was approximately thirty-three years old and at the time of the death of the testator had one child two years old.
The children of J. Allen Smith contend that the devise to them is per capita and that they take seven-tenths of the residuary estate and Mrs. Wofford, Mrs. McMahan and Mrs. Lambeth, each, one-tenth.
Mrs. Wofford contends that the devise to the children of J. Allen Smith is per stirpes and that those children together take one-third; that she takes one-third; and that Mrs. McMahan and Mrs. Lambeth take one-third together.
Mrs. McMahan and Mrs. Lambeth contend that the devise to the children of J. Allen Smith is per stirpes and that these children take one-fourth, Mrs. Wofford one-fourth and each of them one-fourth of the residuary estate.
The master sustained the contention of Mrs. Wofford, to which construction appropriate exceptions are made by the remaining residuary legatees.
If the children of J. Allen Smith take per capita, it becomes unnecessary to determine whether the division to the nephews and nieces named should be in the proportion of one-third or one-fourth. I shall, therefore, first approach the determination of that issue.
It is elementary that the cardinal rule of construction is to ascertain and effectuate the intention of the testator unless same contravenes some well-settled rule of law or public policy. In doing so the courts frequently encounter considerable difficulty. Parol testimony showing declarations or statements of the testator as to the meaning intended by the language used in the will, is of course, inadmissible. However, testimony as to the circumstances surrounding the testator are very frequently admissible. It is unfortunate that some of these circumstances surrounding the testator in this case were not developed by testimony.
In arriving at the intention of the testator, the courts are not concerned with what he ought or ought not to have done. A testator having a right to his property, the Courts are only concerned with construing the will as it is written.
In determining the intention of a testator, there are certain well-settled rules of construction. But it must be remembered that while ordinarily these rules of construction are not rules of property but only means and agencies created by the courts to enable them to ascertain the intent of the testator and to determine what he really meant by the words written in his will, yet if they are to be disregarded and laid aside, the courts frequently would have nothing to guide them in disposing of questions of the gravest import and directly affecting vital interests of the citizens. And to disregard these rules would frequently result in speculation and conjecture as to the meaning of the testator. But these rules are servants and not masters, and the primary consideration of the Court is to determine what the testator meant by the terms used in his will.
In construing the foregoing residuary clause, the question as to whether there shall be a stirpital or per capita distribution arises.
The rule in England, as stated by the elementary writers, is this: "Where a bequest is made to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation, as to my brother (A) and the children of my brother (B), the distribution is made per capita, and not per stirpes, in which case A takes only a share equal to that of the children of B."
The foregoing English rule was adopted in the early decisions of this State and has been consistently followed, as shown by the following cases: Cole v. Creyon, 1833, 10 S.C.Eq. 311, 1 Hill, Eq. 311, 26 Am.Dec. 208; Conner v. Johnson, 1834, 11 S.C.Eq. 41, 2 Hill, Eq. 41; Perdriau v. Wells, 1851, 26 S.C.Eq. 20, 5 Rich. Eq. 20; Barksdale v. Macbeth, 1854, 28 S. C.Eq. 125, 7 Rich.Eq. 125; Dupont v. Hutchinson, 1858, 31 S.C.Eq. 1, 10 Rich.Eq. 1; Feemster v. Good, 1880, 12 S.C. 573; Rogers v. Morrell, 1909, 82 S.C. 402, 64 S.E. 143, 129 Am.St.Rep. 899.
In the case of Conner v. Johnson, supra, Chancellor Harper said: "I consider it to be very well settled, that if there be a devise to an individual designated by name, and to other individuals designated as a class, as to A and the children of B; or if it be to the children of A and the children of B, all the individuals take equally, and per capita."
It would unduly lengthen this decree to review the foregoing cases. The case of Barksdale v. Macbeth, supra, illustrates the application by the court of this rule. There the testator directed his property, after the death of the life tenant "be the absolute property of such of my children as may be then living, and the issue of such as may be dead; to be equally divided between them."
It was held that the child and issue of predeceased children of the testator, living at the death of the life tenant took equally and per capita.
This rule has been critized in our own as well as other jurisdictions.
Chancellor Harper observed in Cole v. Creyon: "I am not sure that if a different rule had been adopted, the intention of testators would not have been more frequently effected."
But he adds: "The rule being settled however, must be adhered to."
In the case of Barksdale v. Macbeth, supra, Chancellor Dunkin said: "That this mode of construction will yield to a very faint glimpse of a different intention in the context."
In the subsequent case of Wessenger v. Hunt, 9 Rich.Eq. 459, Chancellor Dargan said:
Evidently he was referring to the above quotation from the case of Barksdale v. Macbeth.
The court has adopted two modifications or exceptions to the foregoing general rule.
One of these exceptions is stated in the case of Conner v. Johnson, supra, as follows: ...
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