Schroder v. Antipas

• Decision Date: 15 November 1949
• Docket Number: 16281.
• Parties: SCHRODER v. ANTIPAS et al.
• Court: South Carolina Supreme Court

56 S.E.2d 354

215 S.C. 552

SCHRODER v. ANTIPAS et al.

No. 16281.

Supreme Court of South Carolina

November 15, 1949

M. Martin Davis, Charleston, I. H. Jacobson Charleston, for appellant.

Thomas P. Bussey, Charleston, Robert M. Hollings, Charleston, J. D E. Meyer, Charleston, for respondents.

STUKES, Justice.

Jacob H. Schroder, a childless corner grocer of Charleston prepared and executed his will dated May 17, 1916. He died August 2, 1920, and the will was probated August 7, 1920, and appellant, his widow, qualified as executrix. Recently she bargained to sell a parcel of the devised real estate to the respondent, Gus Antipas, who questioned her ability to convey the fee-simple title and this action for specific performance ensued. The questioned terms of the will follow (original spelling and punctuation preserved): 'I give devise and bequeath my entire estate real and personal mixed and of every kind and dissciption whatsoever which I may own or be in any wise entitled to at the time of my death unto my wife Emma R. Schroder her heirs executors adminestrators and assignis for ever. I hereby announce constutute and appoint my Said wife Emma R. Schroder Sole executrix of this my last will and testament. During her life time and after her death said estate is to be given to the United Synod of the Southern Evangelical Lutheran Church for aiding worthy Yong men for the Gospel Ministry in said Synod.'

Other respondents, defendants below, are the successor of the United Synod, named in the will, and fictitious representatives of all unknown young men who might benefit under the terms of the will and the summons was published as to them, in accord with the statute. All parties are represented by counsel and the answer of the Church included appearance in behalf of the unknown defendants as representatives of the class to which they belong. Thus all with any possible interest in the property under the will are parties to the action and will be concluded by the judgment. This course was directed in a former appeal. See 214 S.C. 87 51 S.E.2d 365.

The trial court decided that the effect of the will was to vest in appellant a life estate in the property, with remainder at her death to the Church, a corporation, in trust for the use stated in the will. This we think was error because the first portion of the will by clear and unmistakable terms devised the fee to appellant.

In Adams v. Verner, 102 S.C. 7, 86 S.E. 211, 212, many of our older decisions were reviewed and also similar, earlier English cases and the rule was stated, as follows: 'On the other hand, one of the soundest rules of construction, founded by the sages of the law, the wisdom of which has been approved by succeeding generations as affording security and certainty to estates, is that, where an estate or interest is given in words of clear and ascertained legal signification, it shall not be enlarged, cut down, or destroyed by superadded words in the same or subsequent clauses, unless they raise an irresistible inference that such was the intention.'

Concise statement of the rule is also found in Walker v. Alverson, 87 S.C. 55, 68 S.E. 966, 968, 30 L.R.A.,N.S., 115, as follows: 'When a gift is made in one clause of a will in clear and unequivocal terms, the quantity or quality of the estate given should not be cut down or qualified by words of doubtful import found in a subsequent clause. To have that effect, the subsequent words should be at least as clear in expressing that intention as the words in which the interest is given.'

Cases, among others, in which the principle has been applied with regularity in this State are: Howze v. Barber, 29 S.C. 466, 470, 7 S.E. 817; Jennings v. Talbert, 77 S.C. 454, 58 S.E. 420; Smith v. Smith, 93 S.C. 213, 76 S.E. 468; Lawrence v. Burnett, 109 S.C. 416, 96 S.E. 144; Cureton v. Little, 119 S.C. 31, 111 S.E. 803; Hutto v. Ray, 192 S.C. 364, 6 S.E.2d 747; Newnham v. Forest Hills, Inc., 195 S.C. 431, 12 S.E.2d 10; Tiencken v. Zerbst, 196 S.C. 438, 13 S.E.2d 483; Peecksen v. Peecksen, 211 S.C. 543, 34 S.E.2d 787.

This court said, per Justice McIver, in Howze v. Barber, supra, 29 S.C. 466, 470, 7 S.E. 817, 819, in applying the stated rule: 'The rule, as we understand it, both of law and of common sense, is that, where an absolute and unqualified estate is first created in words which import absolute and uncontrollable ownership, words relied upon to show that the testator intended to cut down such an estate, or to affect it with any trust, must not only be mandatory, but must, in themselves, show the manner in which they are to operate, so that the purpose of the testator may clearly appear, how or in what degree he intended to cut down the estate previously created, or what was the precise nature of the trust he intended to impress upon it. 2 Story, Eq.Jur. § 1069; 2 Pom.Eq.Jur. § 1014 et seq.; Howard v. Carusi, 109 U.S. 725, 3 Ct. 575 ; Lesesne v. Witte, 5 S.C. 450.'

The language of Justice Hydrick in Lawrence v. Burnett, supra 109 S.C. 416, 96 S.E. 144, 146, was: 'Now, bearing in mind the well-settled rule that where an estate is once given by words of clear and ascertained legal significance, it will neither be enlarged nor cut down by superadded words in the same or subsequent clauses of the will, unless they raise an irresistible inference that such was the...