Tiencken v. Zerbst

• Decision Date: 07 March 1941
• Docket Number: 15226.
• Citation: 13 S.E.2d 483,196 S.C. 438
• Parties: TIENCKEN v. ZERBST.
• Court: South Carolina Supreme Court

13 S.E.2d 483

196 S.C. 438

TIENCKEN v. ZERBST.

No. 15226.

Supreme Court of South Carolina

March 7, 1941

J W. D. Zerbst, of Charleston, for appellant.

H L. Erckmann, of Charleston, for respondent.

J STROM THURMOND, Acting Associate Justice.

This is an action for specific performance of a written contract of sale of certain real estate in Charleston, S. C., and was commenced on September 30, 1940, by service of summons and complaint.

The plaintiff claims that she has the power to sell the real estate in question, and convey a good and marketable title in fee simple thereto, by virtue of the terms of the will of Anna Helena M. Mappus, the widow of John J. Mappus. The defendant, who entered into a contract to purchase said real estate, denies such right.

There are no issues of fact and the questions involved were submitted on the pleadings without testimony, to His Honor Judge Wm. H. Grimball, who heard it on November 23, 1940. Judge Grimball filed his decree on November 29, 1940, ordering the defendant to specifically perform the contract of sale. From that decree, and the judgment entered thereon, the defendant appealed to this Court upon seven exceptions, but in her brief summarized them in the following four questions:

"1. Did the will of John J. Mappus devise an absolute estate in fee simple to his widow, Anna Helena M. Mappus?

"2. Did the said Anna Helena M. Mappus have the power of disposing by will of the property devised to her by the said John J. Mappus, in any manner which she saw fit, or did John J. Mappus intend by his will to create a trust with regard to such of his property as remained at the death of Anna Helena M. Mappus?

"3. Could Anna Helena M. Mappus confer upon her executrix sufficient power to convey a good and marketable fee simple title to the remaining property which passed under the will of John J. Mappus even though she ignored the provisions which he requested and besought her to make?

"4. Are all necessary and proper parties before the Court in this proceeding so that a decision may be rendered binding upon all parties in interest?"

Although appellant raised the four questions set out above, there is only one vital question in the case, namely: What estate did Anna Helena M. Mappus take under the will of her husband, John J. Mappus--a fee simple, or was her estate charged with an implied trust as to the portion not disposed of by Anna H. M. Mappus in her lifetime? To determine this will require a construction of the second paragraph of the will of John J. Mappus, who died in 1905, and which reads as follows:

"Secondly. I give and bequeath to my beloved wife, Anna Helena M. Mappus, the whole of my property, Real and Personal, of which I shall die possessed, with the following exception that One Thousand ($1,000.00) Dollars, I give devise and bequeath unto the Deutsche Evangelische Lutherische St. Johannas Kirche of Charleston, South Carolina.

"John J. Mappus

" To be securely invested for the sole benefit of said church as they see fit to use it but they to keep in good order my lot in the Cemetary for the aforesaid consideration. This amount to be invested for said church at the death of my beloved wife, should there remain a sufficient amount of my Estate at her death, AND I do beseech and request my beloved wife that she will make such provision in her last will that the residue of our joint property remaining at her death not including the amount of One Thousand Dollars, given to the church as previously mentioned, be equally divided between the full brothers and sisters of herself and myself or their respective heirs."

It is apparent from reading the above paragraph in the will that the testator did not attempt to create any trusts. All that he did was to "beseech and request" his wife to make certain provisions in her last will. The words "beseech" and "request," which are synonyms, are essentially precatory words. Several definitions might be given for the words "beseech" and "request." Webster's Twentieth-Century Dictionary, 1935 Ed., defines the transitive verb of these words as follows:

"Beseech. To entreat; to implore; to beg eagerly for; to solicit."

"Request. To ask; to solicit; to express desire to."

The wife took the fee and the entreaty was only that she make a will as to the remaining property at her death. The rule is that when a trust by implication is permitted it must be with clear intent without the intervention of any act by the first donee. 69 C.J., 79.

The tendency of our decisions is to restrict the doctrine of so-called precatory trusts, and before declaring a trust of this kind the Court must be satisfied that the testator's intention was as full, complete, settled and sure, as though he had given the property to hold upon a declared trust in express terms. Jennings v. Talbert, 77 S.C. 454, 457, 458, 58 S.E. 420.

Where language only conveys a desire or wish, it does not impose an obligation which can be enforced in a court of equity or qualify estates previously given. Brunson v. King, 2 Hill Eq. 483, 490; Lesesne v. Witte, 5 S.C. 450, 459; Arnold v. Arnold, 41 S.C. 291, 298, 19 S.E. 670.

Lesesne v. Witte, supra, 5 S.C. page 460, holds: "If there is nothing to control the use of the property in the hands of the first taker, and he may appropriate it exclusively to his own purposes, there will be wanting that certainty which is necessary to give effect to the recommendation as a trust."

And also, 5 S.C. at page 461, where the Court said: "Nor will the devise be construed into a trust if it appears, from the context, that the first taker was to have a discretionary power to withdraw any part of the subject from the object of the wish or request."

The rule in this State is that "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." Walker v. Alverson, 87 S.C. 55, 60, 68 S.E. 966, 968, 30 L.R.A., N.S., 115. Also see Jennings v. Talbert, supra; Smith v. Smith, 93 S.C. 213, 214, 76 S.E. 468.

"When a gift is made in one clause of a will in clear and unmistakable terms, it cannot be cut down by a subsequent clause by words of doubtful import." Newnham v. Forest Hills, 195 S.C. 431, 12 S.E.2d 10, 11.

The following three propositions of law were approved by this Court in the case of Werber v. Moses, 117 S.C. 157, 167, 168, 108 S.E. 396, 398:

"It has become a settled rule of construction that, when the words of a will in the first instance distinctly indicate an intent to make a clear gift, such gift is not to be cut down by any subsequent provision which is ambiguous or inferential, and which is not equally as distinct as the former; or, the rule may be stated that a clear gift is not to be cut down by anything which does not, with reasonable certainty, indicate an intention to cut it down." 30 A. & E. 687.

"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...