White v. White, 17968

• Decision Date: 03 October 1962
• Docket Number: No. 17968,17968
• Court: South Carolina Supreme Court
• Parties: Walter P. WHITE, as Executor of the Will of H. W. Hunt, Plaintiff-Respondent, v. Walter P. WHITE, individually, et al., of whom Walter P. White, Individually, is Defendant-Appellant, and All other Defendants are Respondents.

Page 627

127 S.E.2d 627

241 S.C. 181

Walter P. WHITE, as Executor of the Will of H. W. Hunt Plaintiff-Respondent, v. Walter P. WHITE, individually, et al., of whom Walter P White, Individually, is Defendant-Appellant, and All other Defendants are Respondents.

No. 17968.

Supreme Court of South Carolina.

Oct. 3, 1962.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for defendant-appellant.

Earle, Bozeman & Grayson, Greenville, for plaintiff-respondent.

Leatherwood, Walker, Todd & Mann, Hinson & Hamer, Leo H. Hill, Greenville, Herbert & Dial, Nelson, Mullins & Grier, Columbia, for other respondents.

TAYLOR, Chief Justice.

This appeal is brought to construe the will of H. W. Hunt, deceased. The case was referred to the Master in Equity for Greenville County, and from his finding of fact and conclusions of law, appellant-defendant White duly filed exceptions. Upon hearing, the Honorable J. B. Pruitt, Presiding Judge of Thirteenth Judicial Circuit, affirmed the Master's Report. This appeal follows and presents the questions whether the remainder of the testator's residuary real and personal estate are vested or contingent and whether testate by using the term 'per stirpes' in the clauses relating to his residuary estate excluded his wife, who received a life estate, from the remainder.

On September 13, 1922, Mr. H. W. Hunt executed the will under consideration. H. W. Hunt died May 20, 1923, and the will was duly admitted to probate. At the time of his death, he lett surviving his widow, Victoria Hunt, five brothers and sisters, and the issue of three predeceased brothers or sisters. Mrs. Hunt apparently had no relatives. Victoria Hunt died September 1, 1960, surviving her husband by more than 37 years, and by will left her property to Walter P. White, the executor of her husband's will and his nephew. This action is brought by Walter P. White, as executor of the will of H. W. Hunt to construe Items VI and VIII of said will in order to determine heirs and the share that each heir would receive under said Items.

The particular provisions of the Hunt will before this Court for interpretation read as follows:

'Item VI. All the rest and residue of my real estate I give, devise and bequeath to my wife, Victoria Hunt, for and during her natural life and at her death to my lawful heirs, per stirpes, under the Statutes of Distribution of South Carolina.'

* * *

* * *

'Item VIII. All the rest and residue of my personal property I give and bequeath to my wife, Victoria Hunt, for her life and at her death, per stirpes, to my lawful heirs under the Statutes of Distribution of South Carolina.'

Appellant, Walter P. White, contends that these clauses gave to Victoria Hunt, in addition to her life estate, an undivided one-half interest in the real and personal property passing under these residuary clauses. Appellant's argument is that the heirs of H. W. Hunt mentioned in Items VI and VIII must be determined at the time of his death and that his wife, Victoria Hunt, was one of his heirs under the Statute of Distribution of South Carolina in effect at that time.

Respondents contend that Victoria Hunt's interest was limited to a life estate; therefore, she acquired no interest under these Items which could be transmitted to Appellant by her will. The question, therefore, is whether the interest of the 'lawful heirs' of the testator are to be determined at the death of the testator and, if so, whether testator's widow is included in the term 'lawful heirs.'

Both the Master and the Circuit Judge decided that Victoria Hunt acquired only a life estate under the will of her husband and that she was not included in the term 'lawful heirs,' because, under the language of the will, the 'lawful heirs' of the testator would be determined at the time of the death of the life tenant.

'It is elementary that a testator's intention, as expressed in his will, will govern in the construction of it if not in conflict with law or public policy; and it will be ascertained upon consideration of the entire will. However, 'in looking for this intention we must be guided by the words which the testator has used, reading them in the light of established principles of law." Gist v. Brown, 236 S.C. 31, 113 S.E.2d 75.

In determining the vested or contingent nature of the remainder, it must be kept in mind that the law favors the vesting of estates at the earliest time possible; and whenever there is doubt as to whether an interest is vested or contingent, the Court will construe it as vested. Walker v. Alverson, 87 S.C. 55, 68 S.E. 966, L.R.A.,N.S., 115; Wannamaker v. South Carolina State Bank, 176 S.C. 133, 179 S.E. 896; Albergotti, et al. v. Summers et al., 205 S.C. 179, 31 S.E.2d 129; Black et al. v. Getty et al., 238 S.C. 167, 119 S.E.2d 660. We need look no further for the general rule than McFadden v. McFadden, 107 S.C. 101, 91 S.E. 986:

'The well-recognized rule is that when there is a devise to 'heirs' as a class, they take at the death of the testator, unless a different time is fixed by the word 'surviving,' or some other equivalent expression.'

This rule was followed in Avinger, et al. v. Avinger, et al., 116 S.C. 125, 107 S.E. 26; Busby v. Busby, 142 S.C. 395, 140 S.E. 801; Manigault v. Bryan, et al., 154 S.C. 78, 151 S.E. 199.

As seen by examining the Hunt will, the term 'surviving' is not present. The only language that could be relied upon to create a contingent remainder in the heirs and thereby have the taking class determined as of the time of the falling in of the life estate are the words 'and at her death,' which, it is contended, brings Items VI and VIII of the Hunt will within 'some other equivalent expression' referred to in McFadden v. McFadden, 107 S.C. 101, 91 S.E. 986.

The words 'at her death,' 'on his death' were used in Rochell v. Tompkins, 1 Strob. Eq., 114; Lawrence, et al. v. Burnett et al., 109 S.C. 416, 96 S.E. 144; Avinger, et al. v. Avinger et al., 116 S.C. 125, 107 S.E. 26. In these cases the Court held that vested remainders were created in the heirs of the testator determined as of the time of his death and that included all of the heirs fixed by the statute even though one of them, the widow, had been given a life estate. The words 'at her death' are construed as only fixing the time when the remaindermen are entitled to the possession of the property and not the time of the vesting of the title.

'The fact that the life tenant is a member of the class to which the remainder is given does not change the rule as to the time when the remainder vests, nor is the time of vesting altered by the fact that the life tenant can never come into the enjoyment of the remainder. He takes a vested remainder jointly with the others.' 33 Am.Jur. 600, sec. 139.

The remainder, therefore, is a vested remainder as of the death of the testator.

Determination must now be made whether Mrs. Hunt is included in the expression 'my lawful heirs, per stirpes, under ...