Youmans v. West

• Decision Date: 30 November 1943
• Docket Number: 15591.
• Parties: YOUMANS v. WEST et al.
• Court: South Carolina Supreme Court

28 S.E.2d 47

203 S.C. 480

YOUMANS v. WEST et al.

No. 15591.

Supreme Court of South Carolina

November 30, 1943

Appeal from Common Pleas Court of Newberry County; J. Henry Johnson Judge.

Proceeding by Carabel West Youmans, as executrix of the last will of James Henry West, deceased, against Sallie West and John Gardner, administrator with will annexed of Lilian West deceased, for the construction of the will of James Henry West, deceased. From an order of the Circuit Court construing the will, Sallie West and John Gardner, administrator with the will annexed of Lilian West, deceased, appeal.

Order of Judge Johnson follows:

This matter comes before me on an appeal from the Probate Court of Newberry County in its construction of the will of James Henry West, deceased, in one particular.

The testator died on September 11, 1941, his will was probated September 20, 1941, on which date letters testamentary were issued to Carabel West Youmans, a half-sister, as executrix and Floyd Bradley, a friend, as executor. A brother, Thomas O. West, also named as an executor, did not survive the testator. On July 1, 1942, Floyd Bradley died, and thereupon the remaining duties of administering the estate fell upon the executrix.

On February 12, 1943, the executrix filed in the Probate Court her first return, accounting for her acts and doings as executrix, and those of herself and Floyd Bradley executor, so long as he lived, and therewith filed her petition, showing that she had paid all claims against the estate, all expenses of administration so far incurred, that she had carried into effect all specific devises of real estate, had paid and settled all specific or pecuniary legacies, except the shares of stock in the Kentucky Central Life & Accident Insurance Company, which were disposed of by Item 12 of the will, and the construction of which involves the question now before the court. The executrix by her said petition further showed that all the residue of the estate has been reduced to cash, as directed by Item 14 of the will, with the exception of one parcel of real estate appraised at $1,700, which she contemplated disposing of soon; that she had filed inheritance tax returns with the State of South Carolina, and had paid the taxes so assessed; had also filed a Federal estate tax return, commonly referred to as the Federal inheritance tax return, and had paid the taxes shown due thereby, but that the Federal return had not been audited or approved. The executrix reported that she had not paid income taxes for either 1942 or 1943. But, except as stated, the executrix asserted she had paid all liabilities of the estate, and had carried into effect and settled all of the devises and legacies provided for in the will, except distributing the shares of stock in the Kentucky Central Life and Accident Insurance Company, as directed by Item 12, and the residue of the estate as directed by Item 14 of the will, and that she was ready to distribute said stock, under Item 12, and a portion of the cash from the residue, under Item 14, reserving a sufficient amount of the residue to take care of all tax liabilities and contingencies.

The executrix further alleged in her petition, in effect, that she was in doubt as to whom the share of Lilian West, given under both Items 12 and 14 of the will, should be distributed, whether to the estate of Lilian West or to the remaining legatees mentioned in Items 12 and 14 of the will. The executrix also asked for another minor construction of the will, with which we are not now here concerned.

On the date of the filing of said return and accounting and petition by the executrix, the Probate Judge passed an order approving the distribution of all the shares of stock in the Kentucky Central Life and Accident Insurance Company, except the share of Lillian West and 5 odd shares, and directed that the shares which otherwise would have been distributed to Lilian West and the 5 odd shares be held by the executrix until a hearing could be had thereon.

On February 18, 1943, the Probate Judge issued a notice to all parties interested that a hearing would be held on the accounting and petition of the executrix in his office on April 2, 1943. This notice was personally served upon all of the legatees mentioned in Items 12 and 14 of the will. At the hearing in the Probate Court, held pursuant to said notice, the executrix filed her second return, whereby she showed that she had disposed of the last parcel of real estate, and had thereby converted all of the residue of the estate into cash. At the hearing, the returns of the executrix were approved, and the construction of the will, as prayed for by the executrix, was taken under advisement by the Probate Court. On April 9, 1943, the Probate Court filed its decree, construing the will, and within due time thereafter, Carabel West Youmans, as executrix and as an individual, filed an appeal from this decree, in so far as it held that the share of Lilian West, under Items 12 and 14 of the will, goes to her estate, and alleged error in the Probate Court failing to hold that such share should be divided among the other legatees mentioned in said items. Said Items are as follows, and the particular provision of each item, giving rise to this question is emphasized by me by the italicizing thereof:

"Twelfth. I will, devise and bequeath the one thousand (1000) shares which I own of the stock of the Kentucky Central Life and Accident Insurance Company of Anchorage, Kentucky to the following: my brother Benjamin W. West of Terre Haute, Ind. One Hundred (100) shares; my brother Thomas O. West of Louisville, Kentucky, One Hundred (100) shares; Mrs. Corrie West of Newberry, S. C. the widow of my brother Charles M. West One Hundred (100) shares; Mrs. Lee West of Louisville, Kentucky, the widow of my brother Otis E. West One Hundred (100) shares; Lillian West of Colorado Springs, Colorado, the daughter of my deceased brother Sammie A. West Fifty (50) shares; Mrs. Sallie West of Colorado Springs, Colorado, the mother of the above named Lillian West Fifty (50) shares; Pearl West of Newberry, my half-sister One Hundred (100) shares; Alice West Yates of Winnsboro, South Carolina, my half-sister One Hundred (100) shares; Robert H. West of Louisville, Kentucky, my half-brother One Hundred (100) shares; Mary E. West of Newberry my step-mother One Hundred (100) shares; Carobel West Youmans of Columbia, S. C. my half-sister Fifty (50) shares; Tilla Louise West of Newberry, South Carolina, my half-sister Fifty (50) shares. It is my will that in the event that any of the legatees mentioned in this twelfth clause die before the date of my death or before the final settlement and distribution of my estate that the share herein devised to them shall go to their widow or widower and children share and share alike if there be children; if there be no children then to the widow or widower; if there be no widow or widower or children the said share shall be divided among the remaining legatees listed in this twelfth clause of my will in the same proportion as stated. In the event that I do not own One Thousand (1000) shares of this stock at the time of my death or in the event I shall own more than One Thousand (1000) shares of this stock at the time of my death I will, devise and bequeath such of this stock as I may own at the time of my death to the persons named and in the manner designated in this twelfth clause of my will and in the proportion as stated for the One Thousand (1000) shares."

" Fourteenth. I will, devise and bequeath all the rest and residue of my estate of whatever character, and direct that my Executors and Executrix shall sell the same and divide the proceeds thereof, share and share alike to the following; my brother Benjamin W. West of Terre Haute, Ind.; my brother Thomas O. West of Louisville, Kentucky; Mrs. Corrie West of Newberry, S. C., the widow of my brother Charles M. West; Mrs. Lee West of Louisville, Kentucky, the widow of my brother Otis E. West; Lillian West of Colorado Springs, Colorado, the daughter of my deceased brother Sammie A. West; Mrs. Sallie West of Colorado Springs, Colorado, the mother of the above named Lillian West; Pearl West of Newberry, S. C., my half-sister; Alice West Yates of Winnsboro, S. C., my half-sister; Robert H. West of Louisville, Kentucky, my half-brother; Mary E. West of Newberry, S. C., my step-mother; Carobel West Youmans of Columbia, S. C., my half-sister; Tilla Louise West of Newberry, S. C., my half-sister. It is my will that in the event that any of the legatees mentioned in this fourteenth clause of my will die before the date of my death or before the final settlement and distribution of my estate that the share herein devised to them shall go to their widow or widower and children, share and share alike, if there be children; if there be no children then to the widow or widower; if there be no widow or widower or children the said share shall be divided among the remaining legatees listed in this fourteenth clause of my will in the same proportion as stated."

Lilian West died on October 31, 1942, survived by neither husband nor child, leaving a will, under which her entire estate was left to her mother, Sallie West, the same person so designated as one of the legatees under the above-quoted items of the will of James Henry West. John Gardner was appointed as administrator with will annexed of Lilian West, and he and the said Sallie West have appeared in this appeal, through their attorney, as respondents, and ask that the decree of the Probate Court be sustained.

This appeal, by the express consent of the attorney for the respondents and the attorneys for the appellant, was marked heard by me at the April, 1943, term...