Thomas v. Poole

• Citation: 19 S.C. 323
• Parties: THOMAS v. POOLE.
• Decision Date: 19 April 1883
• Court: United States State Supreme Court of South Carolina

19 S.C. 323

THOMAS

v.POOLE.

Supreme Court of South Carolina.

Apr. 19th, 1883.

1. A decree for partition, regularly made by the Probate Court before the decision of Davenport v. Caldwell, 10 S. C., 331, must be sustained upon the principle of communis error facit jus.

2. The question raised, but not considered: What is the extent of the jurisdiction conferred by the constitution upon Probate Courts “in business appertaining to minors” and “in all matters testatmentary?”

3. A will being incapable of execution according to its terms, a petition was filed in the Probate Court to have the lands and other property sold, and the estate settled according to the spirit of the will, all the heirs being made parties. Held, that it was, substantially, a proceeding for partition.

4. The Court of Probate is a court of record, and, within the limits of its jurisdiction, is not an inferior court.

5. Matters appearing in a referee's report and not excepted to, and no ruling thereupon made by the Circuit judge, cannot be considered here.

6. Under a devise to M. for life, and after her death to be equally divided between her children, but should she die leaving no child or children, or lineal descendant, then over, the interest of M.'s children was a contingent remainder, which interest could not be adjudicated during M.'s life-time, and to a proceeding for partition of this land they were not necessary parties.

7. A testator directed that money coming to his daughter M. should be paid to C., as trustee. C. died; and on M.'s petition another trustee was appointed by the Probate Court, to whom, through M.'s agency, her money was paid. Held, that the Probate Court was without power to appoint trustees; but that M. was estopped from questioning the validity of payments made to the trustee so appointed.

Before FRASER, J., Spartanburg, July, 1881.

The opinion states the case.

The Circuit decree, omitting its statement, was as follows:

The questions to be settled now, are—

1. What are the rights of the several parties under this will, under a proper construction of its terms? 2. Did the Probate judge have the right to adjust the equities of the parties and order a sale of this land for this purpose? Both questions are involved in doubt, and I approach them with misgivings.

The inquiry in all these cases is not what the testator intended to put in his will, but what intention is expressed by the will. The first is to make a will, and the second is to interpret or construe it. The testimony of Mr. Bomar, the ordinary, who drew this will, is not competent to show that a technical word in the will was used in other than a technical sense. He, of all others, ought to have known the meaning of such words. The memoranda found after testator's death, in his handwriting, are not admissible to explain the meaning of the words used in this will, and, if admissible, could give no aid. The words must be held to their true and technical import, unless controlled by the context of the will itself, and the context may show that they have another meaning, and when this is done we find the intention of the testator, which is to govern. Words are to be construed in “their strict and primary acceptation,” unless they appear, from the context of the will, to be used “in a different sense,” in which case they will be so construed. Wigr. & O'H. Wills, Prop. I., p. 15.

I. In the fourth clause of the will, testator wills and bequeaths to Mrs. Thomas for life, &c., one of the parcels of land. In the seventh clause he directs that if the appraisement “heretofore directed, shows any inequality in the value of the legacies to my children, for the purpose of making them all equal the legatee or legatees receiving the larger shares shall pay in money to those receiving the smaller shares” until they are made equal, and if Mrs. Thomas shall be entitled to any money, the same to be paid to a trustee. Does the words “legatee” include Mrs. Thomas and “legacy” include the land? Now the property directed to be appraised in the will “heretofore,” i. e., before the seventh clause, was the land, the slaves given to Calvin Poole, and the railroad and bank stock to Washington Poole. If, under this clause, two legatees are to pay, then to whom, unless it is to a third or fourth who gets land? It seems to me that there is no escape from the conclusion that one to whom land is given is called in this clause a legatee, because only two, Calvin and Washington Poole, get personalty out of that appraised property. This conclusion is strengthened by the proviso in this clause that if Mrs. Thomas is to get money, it must be paid to her trustee. This proviso cannot refer to the money to be received under the ninth clause out of the residue, because that clause contains a similar proviso, that the money shall go into the hands of her trustee.

I see nothing in this clause, or in any subsequent part of the will, to require the word “children” to be construed to mean or to include grandchildren. Testator seems to have been careful to say “children” when he meant it, and “grandchildren” when he was providing for them. The word ““children” is used with a qualification, however, in one clause, as we shall hereafter see. 1 Jarm. Wills, § 684-5. It is, therefore, held that in the seventh clause the word “legacy” includes the land given to Mrs. Thomas, and the word “children” includes only Mrs. Thomas, Calvin and Washington Poole, and that by its provision they are to be equalized out of the property given to them and ordered “to be appraised” in the second clause of the will.

II. The ninth clause directs a sale of the residue and the payment of debts, and then the balance to be equally divided among my children, share and share alike, according to the statute of distributions, with a proviso that any money coming to Mrs. Thomas shall be paid to her trustee. In the tenth clause of the will, it is provided that “if the value (of the land given to the two sons of Luther Poole) amounts to more than equal share, they are to pay cash in money to their brother and sisters until all are equal.” Whence the doubt on the testator's mind as to the value of the land amounting to more than equal share, unless he had made some provision in the will for this brother and sisters (children of Luther Poole, and, therefore, his grandchildren)? No other clause contains any provision for them, and, it seems to me, that the qualification of children in the ninth clause, by the words “according to the statute of distributions,” shows that this is the true construction of the will, and that the three children, Mrs. Thomas, Calvin and Washington Poole, and the grandchildren, children of Luther Poole, take this residuum “according to the statute” per stirpes, and it is so held. Ruff v. Rutherford, Bailey Eq. 11; Izard v. Izard, 2 Desaus. 309; 2 Wms. Ex. 802; Wigr. & O'H. Wills, Prop. 1, p. 15.

III. If these views are correct, then the proper construction of the tenth clause is that William Thomas Poole and James Buchanan Poole take the land under the third clause of the will, after the death of the widow, subject to a charge to make “their brother and sisters equal” to themselves, taking into the estimate what is received under the ninth clause out of the residuum and the value of the land, and it is so held.

The testator made a specific provision for his widow, most of which was absolute; he gave a specific legacy to John WashingtonThomas, a grandson; he gave his own children certain property, out of which, as amongst themselves, they were to be made equal; and he gave certain property to the children of Luther Poole, a deceased son, out of which they were to be made equal as amongst themselves, leaving only the residuum as a common fund. He intended to make them equal, but prescribed the mode in which this equality should be attained, and his will on this subject must govern, even if it fails to produce equality.

If, however, the Probate Court had jurisdiction over these matters, this court can review its judgment only on appeal and not here. The Court of Probate, by article IV., section 20 of constitution, has “jurisdiction in all matters testamentary and of administration.” The court never assumed to exercise jurisdiction in partition of real estate under this section, but in pursuance of authority conferred by an act of the legislature. Davenport v. Caldwell. This act has been held by the Supreme Court to be unconstitutional. The Supreme Court, however, has held that the Probate Court has jurisdiction to order the sale of real estate in aid of assets for the payment of debts, because, by law, real estate had been made assets for this purpose. McNamee v. Waterbury. Even on this the court was divided. The word ““administration” has been always held to apply to the control of the personal estate of a deceased person, and never to realty, and the ruling of our Supreme Court is the only exception, and, perhaps, rendered necessary by the statute making real estate assets for the payment of debts, and existing when the constitution was adopted. 1 Jarm. Wills, p. 1; 4 Blacks. Com., chaps. XXIII., XXXII.

There has been the same uniform usage in reference to the word “testamentary” in English and American law. It is true that a last will and testament covers both legacies and devises and disposes of real and personal estates. If the constitution had used the words “wills” or “devises” there would have been no doubt that it would have conferred jurisdiction over real as well as personal estates. This will, perhaps, be admitted, but it may be said that when, by the terms of a will, real estates are subjected to the payment of debts and legacies, then, by analogy to the power to sell real estate for debts, the Probate Court can sell real estate to pay and equalize legacies. By act of the legislature under a different constitution, ordinaries had power in certain cases to sell land for division and...