Rogers v. Rogers, 16603

• Decision Date: 17 March 1952
• Docket Number: No. 16603,16603
• Citation: 221 S.C. 360,70 S.E.2d 637
• Court: South Carolina Supreme Court
• Parties: ROGERS v. ROGERS et al. (two cases).

Page 637

70 S.E.2d 637

221 S.C. 360

ROGERS v. ROGERS et al. (two cases).

No. 16603.

Supreme Court of South Carolina.

March 17, 1952.

Rehearing Denied May 12, 1952.

McEachin, Townsend & Zeigler, Florence, for appellants.

J. B. Gibson, Dillon, Samuel Want, Darlington, for respondents.

OXNER, Justice.

By agreement of counsel, these two actions were consolidated and are now before this Court on questions relating solely to the construction of the wills of J. R. Rogers and A. Maude Hamer. In the order of consolidation, it was stipulated that all other issues raised by the pleadings should be reserved until the wills were construed.

J. R. Rogers died in February, 1946, leaving of force a will dated November 28, 1944, and a codicil thereto dated February 22, 1945. The controversy here relates primarily to what estate in the personal property was given by the testator to his unmarried sister-in-law A. Maude Hamer, in Item VI of this will. Appellants contend that Miss Hamer acquired only a life estate, with the right to use and consume any portion of said personal property during her lifetime, and with the testamentary power to appoint among a limited class those who would take by remainder, which power of appointment appellants assert was never executed by her. Respondents contend that Miss Hamer acquired an absolute estate in the personal property, without any condition, qualification or limitation, and that she was fully empowered to dispose of same by will or otherwise in any way she saw fit.

In order to properly construe Item VI, it will be necessary to refer briefly to the other portions of the will and also to the codicil.

In Items I, II and III, the testator directs that his debts and funeral expenses be paid as soon as practicable, provides for the upkeep of his cemetery lot, and authorizes his executors to purchase and install a set of chimes in the tower of a church at Latta, Dillion County. In Item IV a tract of land containing 82 acres is devised 'in fee simple' to A. Maude Hamer. In Item V the testator's residence is devised to A Maude Hamer 'in fee simple', with the request that upon her death she give said property to his brother, L. B. Rogers, in the event he desires this place for a home but if not, that Miss Hamer give the residence to such niece or nephew of the testator as will live in the house and maintain it as a home. Item VI, which is the focal point of this controversy, is as follows:

'All my personal property of every kind and description including money, bonds or other evidence of indebtedness, I give and bequeath to my sister-in-law, A. Maude Hamer, absolutely with the right to use the said personal property absolutely as her own during her lifetime. However, I request her, prior to her death, to make a will bequeathing the said personal property in such amounts as she may desire to my brothers. L. B. Rogers, A. McKeithan Rogers, to my nephews, Lott T. Rogers, Fred Rogers and William Rogers, Jacob Rhodes Rogers, Luther Rogers, Dan Rogers and the other children of L. B. Rogers and A. McKeithan Rogers. In case of the death of any of the brothers or nieces or nephews mentioned either individually or as a class then she is to divide the property as she sees fit among the survivors. I ask her to give especial consideration to Lott T. Rogers for his aid to his father in helping him carry his indebtedness and his interest in his business. This devise, however, is subject to the special devises hereinafter mentioned.' Item VII reads:

'All the rest, residue and remainder of my property of every kind and desciption I give to my sister-in-law, A. Maude Hamer, for and during the term of her natural life.

'These bequeaths and devises to my said sister-in-law are made for the reason that for many years she has lived with me and my wife, who was her sister, and during that long illness of my wife and during my various illnesses, she has waited on and cared for us as devotedly as any daughter could have done and to a greater extent than any of my own people.'

In Item VIII the testator directs that upon the death of his sister-in-law, A. Maude Hamer, certain stipulated sums, aggregating $2,600, be given to various nephews and nieces named therein, which amount he states is 'to be paid out of the personal property of my estate on the death of the said A. Maude Hamer and her power to bequeath by will is limited to this extent'. Under Items IX, X and XI upon the death of A. Maude Hamer, two tracts of land are devised to testator's brother, A. McKeithan Rogers, and one tract, each, to his nephew, Jacob Rhodes Rogers, and his brother, L. B. Rogers. Under Item XII, provision is made for the disposition of the property given in the three preceding items to A. McKeithan Rogers, L. B. Rogers and Jacob Rhodes Rogers in the event either of said devisees predeceased A. Maude Hamer.

Finally, the testator appoints his brother, L. B. Rogers, and his sister-in-law, A. Maude Hamer, executor and executrix of his will.

The codicil, which was executed about three months after the will, consists of four items. In Item I the testator gives to his brother, L. B. Rogers, his interest in a warehouse. In Item II he directs his executors to sell certain real estate, stated by him not to have been covered by his will, with a provision that the proceeds of same 'shall become a part of my personal estate and is bequeathed as is the balance of my personal estate in the will above referred to.' In Item III it is provided that in the event A. Maude Hamer does not leave a will effective at the time of her death, the residence described by the testator in Item V of his will should go to his brother, L. B. Rogers. Item IV is as follows:

'Upon the same condition, that is to say, in case my said sister-in-law, A. Maude Hamer, does not leave a will effective at the time of her death, it is my will and desire that my executors herein named shall divide all of my personal property into twelve equal shares, one share of which I give to my brother, L. B. Rogers; one share to my brother, McKeithan Rogers; two shares to my nephew, Lott Rogers; one share to my niece, Sarah Rogers; one share to my nephew, Fred Rogers one share to my nephew, William Rogers; one share to my nephew, L. B. Rogers, Jr.; one share to my nephew, Tom Berry Rogers; and the final share to my niece, Jane Rogers Sellers. Should any of my nieces or nephews or my brothers above named predecease either me or my sister-in-law, A. Maude Hamer, the personal property is to be divided in the same proportions as above set forth among the survivors; provided, such niece or nephew does not leave children, him or her surviving, in which case the bequest is to go to such child or children.'

It is elementary that the cardinal rule of construction is to ascertain and effectuate the intention of the testator, unless that intention contravenes some wellsettled rule of law or public policy. While there are certain rules of construction to be followed in seeking such intention, they are subservient to the paramount consideration of determining what he meant by the terms used in his will. Peoples National Bank v. Harrison, 198 S. C. 457, 18 S.E.2d 1. The same underlying principle was stated by Chief Justice Marshall in Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322, as follows: 'The first and great rule in the exposition of wills (to which all other rules must bend) is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law'. There is a growing tendancy among the courts to apply, not merely to affirm preliminarily, the principle that in the construction of a will all of the provisions are to be considered and given effect so far as possible, and the true intent gathered from the four corners of the instrument. Perhaps the best approach to the problem before us is to undertake to ascertain the intention of the testator 'unobscured by the fault of technical learning', and without reference to any set of abstruse and arbitrary rules. After doing so, we can then see whether there are any rules of law requiring a modification of the conclusion reached.

The record does not disclose the value of the estate passing under this will. Evidently it was very substantial. Although not shown by the record, it is fair to assume that the testator had no children. Undoubtedly there was a deep sense of gratitude on his part for the attention and consideration extended to him and his wife by his unmarried sister-in-law, to whom he was apparently devoted. He obviously intended to generously provide for her comfort, maintenance and support as long as she lived but having done so, concluded that consideration should be given to his own relatives. Only a small portion of the real estate was given Miss Hamer in fee. Most of it was devised to her for life. In so far as the personal property was concerned, he intended that Miss Hamer should have the right to use same 'absolutely as her own during her lifetime', with the testamentary power to appoint among a limited class those who would take by remainder. In Item VIII he requested that upon the death of Miss Hamer, certain legacies should be paid 'out of the personal property of my estate', showing that he considered any personal property not used or consumed by Miss Hamer to be a part of his estate and not hers. A like intent is found in Item IV of the codicil, where the testator provides that in the event Miss Hamer 'does not leave a will effective at the time of her death', his executors 'shall divide all of my personal property into twelve shares * * *'. By Item IV of the codicil, the testator sought to provide for the disposition of his personal property upon the death of Miss Hamer in the event that she did not execute the power of appointment given in Item VI of the will.

Does the foregoing construction violate any public policy or rule of law? The Court below held that Miss Hamer...