Shevlin v. Colony Lutheran Church

• Decision Date: 01 August 1955
• Docket Number: No. 17047,17047
• Citation: 88 S.E.2d 674,227 S.C. 598
• Parties: Nellie M. SHEVLIN et al., Appellants, v. COLONY LUTHERAN CHURCH et al., Respondents.
• Court: South Carolina Supreme Court

Page 674

88 S.E.2d 674

227 S.C. 598

Nellie M. SHEVLIN et al., Appellants, v. COLONY LUTHERAN CHURCH et al., Respondents.

No. 17047.

Supreme Court of South Carolina.

Aug. 1, 1955.

Jack R. Callison, West Columbia, Callison & Lind, Columbia, for appellants.

Clarkson & Hunter and Eugene S. Blease, Newberry, C. E. Saint-Amand, Gaffney, for respondents.

OXNER, Justice.

We are called upon on this apeal to construe the will of Sylvenus v. Shevlin. The testator, after providing for the payment of his debts, funeral expenses and the erection of a suitable monument at his grave, disposed of his estate as follows:

'Item III. I will, devise and bequeath unto my beloved wife, Dora Dominick Shevlin, all real estate of every nature and description of which I may die seized and possessed, and also all my personal property of every nature and description and choses in action and money, that is to say to the said Dora Dominick Shevlin all my property of every nature and description, both real and personal, to use for her comfort, maintenance and support, to sell and dispose of same in any manner she may deem best, and to invest same in such manner as she may see fit, and if there be any of my estate or the proceeds thereof left at her death, then such as may be left, I desire to go as follows, to wit: one fourth of such to be invested and the proceeds of same to be used for the maintenance and upkeep of her and my graves in Colony Cemetery and also for the upkeep of the said Colony Cemetery, one fourth to go to the Lowman Home and the balance of one-half to go the Colony Church, this to be used for repairs and general upkeep of Colony Lutheran Church in Newberry County, South Carolina.

'Item IV. I hereby nominate, constitute and appoint my beloved wife, Dora Dominick Shevlin, as Executrix of this my last will and testament, with full power to handle my said estate, to sell and convey, make deeds and acquittances and to dispose of my said property, both real and personal as she may deem best or to hold and keep same for her own uses and purposes as she chooses, and that she is to serve as such Executrix without bond.'

As the testator and his wife Dora Dominick Shevlin, were proceeding to church on Sunday morning, December 16, 1951, the automobile in which they were traveling was struck by a train at a railroad crossing. As a result of the injuries sustained, she died instantly and he a few minutes later. The testator left surviving as his sole heirs at law the appellants, brothers, sisters, nephews and nieces residing in various western states, with whom he had only infrequent contacts. Bother the testator and his wife had for a number of years been devoted members of the Colony Lutheran Church in Newberry County. They were also very active in the institutions connected with this denomination.

The contest here is between appellants and the Colony Lutheran Church, Colony Church Cemetery and the Lowman Home, which are among the respondents on this appeal. Appellants contend that under the will absolute title to all of the testator's property was given to his wife; that since she predeceased him, the gift to her lapsed; and that as his sole heirs at law, they are entitled to the whole estate, which has been appraised at approximately $50,000.00.

Respondents say that the testator intended to give his wife only the use of his estate for her comfort, maintenance and support, coupled with the unrestrained power to dispose of all or any part of same and use the proceeds for such purposes, and then to give what remained unexpended or unconsumed at her death to the charities named in Item III.

Both the Special Referee, to whom the case was referred, and the Circuit Judge adopted the construction advanced by respondents.

In support of their proposed construction of the will, appellant argue that the words first employed in Item III clearly import an absolute estate and that the superadded words 'to use for her comfort, maintenance and support, to sell and dispose of same in any manner she may deem best' and the powers given in Item IV are merely legal incidents of the estate previously given; that the provision relating to the charities constitute merely a precatory expression and cannot be reasonably taken as the basis for a devise or bequest; and that even though such provision be construed as not being of a precatory nature, it must fail because (1) repugnant to and inconsistent with the estate first given and (2) an absolute estate cannot be cut down or qualified by words of doubtful import found in a subsequent clause.

We approach the construction of this will, as was done in the recent cases of Rogers v. Rogers, 221 S.C. 360, 70 S.E.2d 637, and Davis v. Davis, 223 S.C. 182, 75 S.E.2d 46, by first undertaking to ascertain the intention of the testator without reference to any rules of construction. If we but let the will speak for itself, the meaning is clear. The primary concern of the testator was the comfort and support of his wife. To this end he gave her the use and enjoyment of his property, coupled with unrestrained power of disposition. In the event she did not expend or consume all of the corpus in her lifetime, he wished one-fourth of the remainder to be used for the upkeep of the cemetery in which he and his wife would be buried and the balance to go to the Lowman Home and to the Colony Church. He had near relatives but there is no indication that he intended for them to share in his estate.

We cannot consider the clauses in Item III piecemeal. The intent 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.

It will be noted that nowhere in the will is the testator's wife expressly given a fee simple estate. Such is the effect of the language used in the first clause of Item III only by virtue of Section 19-232 of the Code of 1952, which dispenses with the necessity of words of inheritance in creating a fee simple estate by will. The testator's intention as to the estate conveyed in the first clause is immediately explained by saying that the property is to be used for the comfort, maintenance and support of his wife, with the right to sell and dispose of same in any manner she deemed best, and at her death the unexpended corpus is to be disbursed for certain named purposes. If an absolute estate was intended, reference to its use for his widow's support and the power given her to sell and...