Shelley v. Shelley

• Decision Date: 03 September 1964
• Docket Number: No. 18258,18258
• Citation: 244 S.C. 598,137 S.E.2d 851
• Parties: Lanneau SHELLEY, Appellant, v. Mrs. Gertie SHELLEY, Mrs. Gertie Shelley as Executrix of M. B. Shelley, Estaleen S. Ganis, Evelyn S. Perritt (Perry), Bevin Shelley and Eugene Shelley, Respondents.
• Court: South Carolina Supreme Court

Page 851

137 S.E.2d 851

244 S.C. 598

Lanneau SHELLEY, Appellant, v. Mrs. Gertie SHELLEY, Mrs. Gertie Shelley as Executrix of M B. Shelley, Estaleen S. Ganis, Evelyn S. Perritt (Perry), Bevin Shelley and Eugene Shelley, Respondents.

No. 18258.

Supreme Court of South Carolina.

Sept. 3, 1964.

J. Reuben Long, Conway, for appellant.

Stevens & Holt, Loris, for respondents.

BUSSEY, Justice.

This appeal involves a somewhat unique land line controversy between two brothers, Lanneau Shelley and Bevin Shelley, arising under the terms of the will of their father, M. B. Shelley. On or about January 6, 1949, the said M. B. Shelley and his wife, Mrs. Gertie Shelley, each being possessed of certain real estate or interests therein, went to the office of an attorney for the purpose of preparing a will or wills, and as a part of the transaction Mrs. Shelley conveyed her property to Mr. Shelley, who executed a will which devised his real estate to Mrs. Shelley for life and thereafter made provision for all his children, five in number. Mr. Shelley died September 24, 1956, leaving in force his said will which was duly admitted to probate.

The portion of the will under which the present controversy arises is as follows:

'The home place, known as the Sam Q. Floyd place, is to be divided between Bevin Shelley and Lanneau Shelley; Bevin Shelley to have the southern part same to include the filling station site, one tenant house and two tobacco barns; Lanneau Shelley to have the northern part which includes the house where he lives, the home house, three tobacco barns and two small houses now on the land also packhouse and stalls. That Bevin Shelley and Lanneau Shelley are charged with the payment of $2,000.00 to Eugene Shelley, each to pay an equal part of the $2,000.00; the same to be a charge against said land and same to be paid within a period of five years after my death.'

Lanneau and Bevin Shelley thus occupy the position of vested remaindermen, subject to the charge in favor of Eugene Shelley and subject to the life estate in Mrs. Gertie Shelley.

This action was commenced by Lanneau Shelley to have the court construe the will of M. B. Shelley and determine the dividing line between the land devised to the said Lanneau Shelley and that devised to Bevin Shelley. Although Mrs. Gertie Shelley was made a party individually and as executrix, as were all the devisees named in the will, the only controversy is between Lanneau and Bevin Shelley.

By consent, the cause was referred to the Master of Horry County who took the testimony and filed his report. From an order of the circuit court, substantially confirming the report of the master, and decreeing that the tract be equally divided between Lanneau Shelley and Bevin Shelley as to acreage, and insofar as possible as to value, excluding and not taking into consideration the value of any of the buildings on the land Lanneau Shelley appeals.

Although there are a number of questions involved, the primary question before the court is the proper construction of the will involved. More precisely and specifically stated, the question is, did testator intend, as contended by Bevin, that Bevin should receive acreage equal to that of Lanneau, or did testator intend that Lanneau should receive acreage greater than that received by Bevin?

In the construction of a will the primary purpose of the court is to arrive at testator's intention as expressed in his will considered as a whole. His intention must be ascertained from the language he used where it is clear and unambiguous. Wolfe v. Wolfe, 215 S.C. 530, 56 S.E.2d 343.

In construing a will primary resort is to the words used by testator, but, where words used are incapable of application, as they stand, parol evidence may be received in order to show the meaning which testator intended them to have. Boykin v. Capehart, 205 S.C. 276, 31 S.E.2d 506.

A will must be so construed as to carry out the real intention of testator as gathered from all attendant circumstances. Newnham v. Forest Hills, Inc., 195 S.C. 431, 12 S.E.2d 10.

'The intend must be gathered from the whole instrument, attributing due weight to all its language, considered in the light of the circumstances known to the testator at the time of execution. If practicable, effect must be given to every part. If it can be done by any reasonable construction, all clauses must be harmonized with each other and with the will as a whole. Burriss v. Burriss, 104 S.C. 441, 89 S.E. 405; Wates v. Fairfield Forest Products Co., Inc., 210 S.C. 319, 42 S.E.2d 529; Peecksen v. Peecksen, 211 S.C. 543, 34 S.E.2d 787.' Shevlin v. Colony Lutheran Church, 227 S.C. 598, 88 S.E.2d 674.

With these principles in mind, we now consider the language of the will, as applied to the particular property involved in the controversy. The will contains no express provision that the property be divided 'equally' or 'share and share alike'. Neither does it precisely set forth a dividing line between the northern part and the southern part. A plat of the property in evidence, made subsequent to the death of the testator, reflects that the tract of land in question is approximately, although not exactly, an oblong, rectangular parallelogram which, lengthwise, lies very nearly north and south and contains slightly more than sixty-eight acres, exclusive of a public cemetery and portions of the land occupied by public highways. The plat of the property shows the location of the various buildings referred to in the will and on the property at the time of making the will. It is readily apparent therefrom, that any line which would run in approximately an easterly-westerly direction, so as to divide the tract into a northern part and a southern part of anything like equal acreage, would of necessity leave upon the southern part of the tract, devised to Bevin, the residence of Lanneau Shelley, one tobacco barn and one tenant house, all of which were expressly devised to Lanneau. It thus becomes quite apparent that when the language of the will is applied to the property involved, a latent ambiguity, equivocation or uncertainty arises as to precisely where the testator intended the dividing line to be.

If we give effect to all of the language of the testator, he intended the land to be divided into a northern part going to Lanneau, and a southern part going to Bevin. It is crystal clear that the testator intended that Lanneau's portion was to include nine buildings then on the land, and that the southern part intended for Bevin should include only four buildings. Unless some of the language of the will is to be ignored, it seems to logically follow that the testator intended a dividing line running at least in a generally easterly-westerly direction; a dividing line which would leave the buildings specifically devised to Lanneau on the northern part thereof. It, therefore, follows that he necessarily intended that Bevin should receive less acreage than Lanneau.

Contrary to the conclusion of both the master and the circuit judge, we see nothing in either the language of the will, or the evidence, which would show an intention on the part of the testator to divide the acreage equally between Lanneau and Bevin.

The circuit judge concluded that there was no ambiguity in the will, either patent or latent, and hence that it was unnecessary and improper to resort to any extrinsic evidence in aid of construction to determine the true intention of the testator. It seems to us, however, that both the master and the circuit judge clearly resorted to extrinsic evidence in order to reach the conclusion arrived at. They both attempted to solve the problem, at least in part, by the consideration and allocation of certain tobacco barns between the borhters.

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