Summary
In Lemmon v. Wilson (1944) 204 S.C. 50 [ 28 S.E.2d 792], a testamentary trust provided for the payment of income to the testator's daughter and that upon her death without issue the trust fund "shall be distributed among my heirs-at-law under the statute of distribution of this State, then of force."
Summary of this case from Estate of MinerOpinion
15588
January 24, 1944.
Before PHILIP H. STOLL, J., Sumter County, November, 1942. Modified.
Action by Elizabeth W. Lemmon and others, as Trustees under the terms of the Last Will and Testament of Thomas Wilson, deceased, against Thomas Wilson, Jr., Garnett Peatross, and others for a construction of the testamentary trust. From an adverse judgment as to him, the Defendant Garnett Peatross appeals.
The Circuit Decree of Hon. Philip H. Stoll, adopted as the Opinion of the Court, save as modified in the Per Curiam Order, follows:
This matter comes before me on exceptions of the defendant Garnett Peatross to the Master's reports filed on the 18th day of September, 1942, denying the right of the said Garnett Peatross to participate in any manner in the trust fund more fully hereinafter referred to. The Master filed a supplementary report dated September 30, 1942, the same relating to unexpended income of the trust fund in question.
Thomas Wilson died on July 1, 1921, leaving of force his last will and testament which was duly admitted to probate in the Probate Court for Sumter County, and a copy of the same is in evidence in this case.
At the time of the death of Thomas Wilson he left surviving him his widow, Mrs. Elizabeth Wilson, and his children, E.R. Wilson, John Wilson, W.B. Wilson, C. M Wilson, Martha W. Graham, Elizabeth W. Lemmon Thomas Wilson, and Mary Wilson.
C.M. Wilson died on May 2, 1922, leaving a widow and one son, the defendant, Thomas Wilson III. E.R. Wilson died on September 24, 1924, testate, but leaving no issue. The will of E.R. Wilson was proved in solemn form in the probate Court for Sumter County. Mrs. Elizabeth Wilson, the widow of Thomas Wilson, died testate on July 1, 1925, in and by her will leaving all of her estate to her daughter, Mary Wilson. W.B. Wilson died testate on October 6, 1927, leaving a widow surviving him, to whom he devised all of his estate, but no children surviving. John Wilson died testate on December 30, 1936, leaving a son, John Vernon Wilson, and an adopted son, Charles H. Wilson. These two have agreed between themselves by stipulation with reference to the matters referred to in this decree. Mary Wilson, who subsequently married the defendant, Garnett Peatross, died testate on October 14, 1941. Mary Wilson Peatross left no children or grandchildren surviving her, there never having been any children born to her. By her last will and testament all of her property was bequeathed and devised to the defendant, Garnett Peatross.
The executors and trustees named in the will of Thomas Wilson were John Wilson, E.R. Wilson and G.A. Lemmon.
Thomas Wilson by his last will and testament devised unto his wife, Elizabeth, for her life, all of his estate of every nature and kind, except that out of the income he directed that the sum of Five Thousand ($5,000.00) Dollars per annum be paid to his daughter, Mary, by his wife each year during the life of the wife of the said Thomas Wilson, and after the death of his wife, Elizabeth, Thomas Wilson devised, amongst other trusts, the trust more particularly hereinafter referred to.
On the 19th day of July, 1921, the widow and all of the children of Thomas Wilson, except Thomas Wilson, Jr., entered into an agreement bearing date the 19th day of July, 1921, which agreement is attached to the answer of Garnett Peatross and is in evidence as an exhibit.
E.R. Wilson, one of the trustees named in the will of Thomas Wilson, having died on September 20, 1924, the surviving executors, pursuant to their authority in the will of Thomas Wilson, elected Miss Mary Wilson in the place of E.R. Wilson, and Miss Mary Wilson, who subsequently married the defendant, Garnett Peatross, continued to act as trustee of the estate of Thomas Wilson as well as trustee for her own trust fund up until the time of her death on October 14, 1941. Upon the death of G.A. Lemmon, Mrs. Elizabeth W. Lemmon, a daughter of Thomas Wilson, was substituted as trustee in his place. Upon the death of John Wilson, J.A. Raffield was substituted as trustee in his place, and upon the death of Mary Wilson Peatross. Thomas W. Lemmon was substituted in her place.
In ________, 1937, an action was commenced by Martha W. Graham and Others, Plaintiffs, v. Mary Wilson Peatross, Elizabeth W. Lemmon and J.A. Raffield as Trustees under the Will of Thomas Wilson, Deceased, Defendants, the complaint in that case charging, amongst other things, mismanagement of the trust fund set up by Item III, sub-division 3, of the last will and testament of Thomas Wilson, said trust fund having been created for the benefit of Mary Wilson Peatross. This action will be referred to hereinafter as the "Accounting Suit."
Subsequent to the death of Mary Wilson Peatross, towit, December 23, 1941, an action was brought by Elizabeth W. Lemmon, J.A. Raffield and Thomas Wilson Lemmon as trustees under the last will and testament of Thomas Wilson, deceased, against Thomas Wilson, Charles H. Wilson, John Vernon Wilson, Thomas Wilson III, Elizabeth W. Lemmon, Martha W. Graham, Robert E. Graham and Garnett Peatross for the purpose, amongst other things, of asking the aid of the Court in determining to whom the trust fund, known as the Mary Wilson trust fund, should be distributed. This suit was commenced for instruction by the trustees. Because of the fact that they were notified by Garnet Peatross that he claimed an interest in the corpus of said trust fund, he was made a party to said suit.
Pursuant to proper motion, I passed an order consolidating the first-named suit hereinafter called the "Accounting Suit" with the last-named suit which will be referred to as the "Action for Instruction."
In the suit of the trustees seeking instructions as to the distribution of the Mary Wilson trust fund, the defendants, other than Garnett Peatross, answered, setting up their claims to the said fund as the heirs-at-law of Thomas Wilson surviving as of the date of the death of Mary Wilson Peatross. The defendant, Garnett Peatross, by answer made claim to the entire trust fund of $200,000.00 by reason of his construction of the family agreement, dated July 19, 1921, and the decree and proceedings in the Court of Common Pleas enrolled as Judgment Roll No. 10890. His contention is that, under said agreement and the proceedings and decree in Judgment Roll No. 10890, his wife, Mary Wilson Peatross, became the purchaser of the fee in the entire trust fund, subject to being defeated only upon the death of Mary Wilson Peatross leaving children surviving her; that, as the sole devise of his wife, she having died leaving no child, children or grandchildren, surviving, the fee then vested in the said defendant.
In failure of the first claim, that if said defendant, Peatross, was not entitled to the whole of said fund by reason of the facts set out in the first claim mentioned above, he was entitled to a 5/12 interest therein because of his contention that Item III, sub-division 3, of the will of Thomas Wilson provided that, in the event of the death of Mary without children, then the estate vested in the heirs-at-law of Thomas Wilson as of the date of the death of Thomas Wilson, and Elizabeth Wilson, the widow of Thomas Wilson, as an heir of her husband, taking a 1/3 interest therein, this 1/3 passed to Mary under the Will of Elizabeth, and Mary having taken a 1/12 interest as an heir of her father, Thomas, this interest passed along with the interest of the widow of Thomas Wilson in said fund to the said Garnett Peatross under the will of Mary Wilson Peatross.
The Master has filed a most illuminating, interesting, and well-considered report, finding against the defendant, Peatross, on his contentions as to both phases of his claims.
Exceptions were duly taken by the defendant, Peatross, to the Master's report, and these exceptions came on to be heard before me at my Chambers in Kingstree, S.C. on the 28th day of October, 1942. Prior to that time Counsel for all parties had handed to the Court the record in the consolidated cases, together with the written arguments, and the Court gave a week's study to the issues raised by the Exceptions before hearing argument.
Since that time the Court has given further study to the arguments filed and the authorities cited, and has reached the conclusion that the Master's findings of fact and his conclusions of law should be sustained upon the grounds hereinafter set forth. The two issues raised by the exceptions (these exceptions are not treated ad seriatim, but all of which have been considered by the Court) are as follows:
I. Is Garnett Peatross entitled to the whole of the Mary Wilson trust fund?
II. Is Garnett Peatross entitled to a 5/12 interest in said trust fund?
I have given careful study to the findings of fact made by the Master in this case, and have concluded that all of the same are correct. It is therefore ordered, that the findings of fact of the Master be, and the same hereby are confirmed and made the findings of fact of the Court.
I. Is Garnet Peatross entitled to the whole of the Mary Wilson Trust Fund?
Garnett Peatross claims the whole of the $200,000.00 trust fund set up under Item 111, sub-division 3 of the will of Thomas Wilson for the benefit of his daughter, Mary, by reason of the construction placed by him upon the terms of the agreement dated July 19, 1921, and the proceedings and decree enrolled as Judgment Roll No. 10890, office of the Clerk of Court for Sumter County.
It is necessary to look to the agreement and the entire proceeding referred to determine this issue.
The agreement provided that there was to be set off after the death of Elizabeth Wilson, the wife of Thomas Wilson, to the several children of Thomas Wilson, except his son, Thomas Wilson, Jr., equal shares of his estate. By sub-division (b) of Section 7 of said agreement it was provided: "That there shall be charged up as against the share allotted to Mary Wilson the property specifically devised and bequeathed for her benefit under sub-division 3 of paragraph III of the said Will; the same to be charged at the appraised value fixed in the manner hereinaforesaid, and the difference between that value and the value of her one-seventh interest in the whole as above determined is to be paid over to her."
Sub-division 10 of this agreement provided as follows: "That for the guidance and protection of the Trustees acting under the Will of Thomas Wilson, it is agreed that the specific provision for the estate of Mary Wilson under the Will, after the death of her mother, is a trust fund of Two Hundred Thousand Dollars, and no further claim will be made by reason of any repetition or duplication in the provision made for her under the said Will with respect to said fund of Two Hundred Thousand Dollars."
Subsequently on November 5, 1925, after the death of Elizabeth Wilson, summons and complaint was brought in the name of G.A. Lemmon as Trustee under the Will of Thomas Wilson, Deceased, and Others v. Elizabeth W. Lemmon and Others, Defendants, and one of the plaintiffs in this case was Mary Wilson as trustee under the will of Thomas Wilson and in her own right. To this complaint was attached the so-called family agreement relied upon by the defendant, Garnett Peatross. There was also attached to the complaint an exhibit marked as Exhibit "G" showing the appraisal and allocation of the property of the estate of Thomas Wilson.
The complaint alleged in paragraph XII: "That the Trustees hold the sum of $200,000.00 (Two Hundred Thousand Dollars) for the benefit of Mary Wilson under paragraph 3, sub-division 3 of the Will of Thomas Wilson, and the remainder of the property shown on schedule `g' the Trustees proposed to pay over to Mary Wilson immediately upon confirmation by this Court of the proposed distribution."
Other paragraphs of the complaint relate to the trust estates established under the will of Thomas Wilson for the benefit of his children, Martha W. Graham, W.B. Wilson, and Thomas Wilson, and allege that each of said trust estates was to be held by the trustees pursuant to the respective Items of the will of Thomas Wilson creating said trusts, just as was alleged in the case of the trust fund created by the will of Thomas Wilson under Item III, sub-division 3 for the benefit of Mary Wilson.
On page 5 of the Master's Report in this case we find: "I find that the disposition and partition as set forth in schedule `G' should be confirmed, except that where property included in said schedule `G' was devised or bequeathed by the Will of Thomas Wilson in trust, the same trust should now attach to this property."
The decree in this case explicitly construes the family agreement as continuing the trusts set out in the will. I quote from the decree: "The agreement, copy of which is attached to the Complaint as Exhibit `B' really provides for equal and equitable distribution of all the property of the Estate of Thomas Wilson, to which was to be added, for the purposes of distribution only, certain properties above set forth, so that the share of each devisee or legatee would be equal in value, distribution to be so made that the devisees and legatees should receive the benefit of the properties specifically devised to or for them, respectively, by the Will of Thomas Wilson, according to the terms of the said Will."
The decree then adjudges that the share and interest in the Benbow Plantation allotted to W.B. Wilson by schedule "G" be held by the trustees, and the property devised under the will of Thomas Wilson in trust for Martha W. Graham be held by the trustees on the trusts and limitations set forth in the respective items of the will of Thomas Wilson creating such trust estate for each of the said beneficiaries. The decree specifically provides with relation to the trust fund of Mary Wilson as follows: "It is ordered, adjudged and decreed that the Trustees under the Will of Thomas Wilson, set apart the sum of Two Hundred Thousand Dollars taking and holding the same in trust for the use and benefit of Mary Wilson in accordance with the terms of the Will of Thomas Wilson as set forth in Paragraph III, sub-division 3."
It hardly seems necessary to further pursue this matter because the decree of this Court enrolled as Judgment Roll No. 10890, office of the Clerk of Court for Sumter County, is res adjudicata and neither Mary Wilson nor any person claiming by, through or under her can attack the same. Wilson v. Gordon, 81 S.C. 395, 61 S.E., 85, rehearing denied, 81 S.C. 395, 62 S.E., 593; Bailey v. United States F. G. Co., 185 S.C. 169, 193 S.E., 638.
I find and hold, therefore, that Mary Wilson Peatross, if alive, would be barred by the decree in Judgment Roll No. 10890, office of the Clerk of Court for Sumter County, from contending that she purchased the fee in the trust fund from her brothers and sisters subject only to being defeated by her death leaving children or grandchildren surviving and, of course, if she could not assert such claim if living, her privy, Garnett Peatross, is barred from so asserting such claim.
The interest of Thomas Wilson, Jr., under no possible theory could be said to have been purchased as he signed nothing and cannot be said to have got anything as consideration.
While, as stated, it is not necessary to proceed further as to the claim of Garnett Peatross to the whole of said trust fund, it is interesting and throws light upon the present claim of Mr. Peatross to inquire into the conduct of Mary Wilson herself for a period of some seventeen years after the entry of Judgment Roll No. 10890. A little less than a year after the filing of the decree in Roll No. 10890, W.B. Wilson, a brother of Mary, filed a petition in the original cause seeking to reopen the judgment, upon the contention that certain of the property divided as property of the estate of Thomas Wilson was in fact his, W.B. Wilson's own property. Mrs. Peatross, then Mary Wilson, filed an affidavit on this motion in which she stated:
"On or about November ____, 1925, we all assembled again, this time, in the office of Mr. Strauss, for the purpose of a reference in the case. My brother, W.B. Wilson, read aloud to us the Complaint or explained it as it was read aloud, and in fact took a leading part in the conversation.
"The Master's report was also read aloud and also the testimony which each witness would sign, W.B. Wilson explaining what it all meant. The testimony was then signed and the Master's report was signed, and the proposed Decree was also read and accepted. * * * It was agreed that Mr. Strauss should send the papers to Manning to have his Honor Judge John S. Wilson sign the decree at once * * *."
In 1927 an action was brought by Martha W. Graham against Mary Wilson et al., as trustee under the last will and testament of Thomas Wilson, which said proceedings is enrolled as Judgment Roll No. 11251, office of the Clerk of Court for Sumter County. In this case Mrs. Graham sought the authority of the Court to sell to the Mary Wilson trust fund the property known as the Williamson Plantation which had been set off to the Trustees under the trust created for the benefit of Martha W. Graham. The complaint in that case alleges in paragraph 7 as follows: "That in and by the said Will and Testament, Thomas Wilson gave unto his daughter, Mary Wilson, after the death of his wife, the income from Two Hundred Thousand Dollars, as set forth in the third paragraph of his Will, and in the allocation and distribution made by the trustees under the Will of Thomas Wilson, they have set apart and invested for the use of Mary Wilson the sum of Two Hundred Thousand Dollars in sundry and various securities; the same being held by the said trustees under the terms and conditions as set forth in the said Will, to wit, for the life of Mary Wilson, with remainder to such child or children as may survive her, and should she leave no child or children, then at her death the principal sum of Two Hundred Thousand Dollars, and any accretions and unexpended income shall be distributed among the heirs-at-law of Thomas Wilson under the Statute of Distribution of the State of South Carolina then of force."
The complaint in the last-mentioned cause in paragraph 4 thereof, also referred to the proceedings hereinabove mentioned as having been brought in 1925, enrolled as Judgment Roll No. 10890, and prayed judgment that the same be confirmed.
In her answer in the case enrolled as Judgment Roll No. 11251, Mary Wilson alleged: "She is very desirous of having same (the Williamson Plantation) acquired for the benefit of the trust estate held for her use for life under the Will of Thomas Wilson, deceased," and she testified in the said cause, "I have read the complaint in this action. The facts stated therein are true. * * * The distribution and allocation made by the trustees under the Will of Thomas Wilson under proceedings enrolled in the office of the Clerk of this Court as Judgment Roll No. 10890, should also be confirmed. That was a fair and equitable distribution at the time."
The decree in said cause authorized the purchase and sale of the plantation for change of investment and directed the conveyance of the said plantation to the Trustees, one of whom was Mary Wilson, of the fund here in question, by proper deed, upon the same terms, trusts and limitations as are set forth in the will of Thomas Wilson with respect to the said fund. The deed executed pursuant to said decree, recorded in Book B-5 at page 426, office of the Clerk of Court of Sumter County, conveyed the Williamson plantation to Mary Wilson et al., as trustees in trust to hold the same under Item III, sub-division 3, of the will of Thomas Wilson, the terms of such trust being identical with those expressed in the will of Thomas Wilson creating said trust fund for the benefit of Mary Wilson.
W.B. Wilson having died on October 6, 1927, leaving no children surviving, Mary Wilson and others as trustees, divided the trust fund created for the benefit of W.B. Wilson, Mary Wilson as such trustee paid to herself individually somewhat in excess of $11,000.00 as her share of this trust fund and distributed the remainder to the other heirs-at-law of Thomas Wilson as ascertained at the time of the death of W.B. Wilson. If the contention of Garnett Peatross that the agreement of July 19, 1921, carried a fee to all of those children of Thomas Wilson who were beneficiaries of the several trust estates because it was an ultimate and final distribution of the estate is true, then this division would have been in violation of said agreement. If Mary Wilson considered the agreement and the decree in Judgment Roll No. 10890 as vesting a fee in the respective children of Thomas Wilson to the trust estates created under said will for the beneficiaries, then it was her duty to have paid over the W.B. Wilson trust estate to the devisee of W.B. Wilson, which she failed to do. This indicates that it was not the intention of the parties that the fee in the trust estates should pass to the respective beneficiaries of said trusts or that the terms of the will creating said trusts should in any way be altered or changed.
In 1937 the "Accounting Action," as hereinbefore referred to, was commenced by Martha W. Graham. In that case Mrs. Mary Wilson Peatross, individually and as trustee, in her answer to the amended complaint, in paragraph 5 of the said answer, alleges as follows: "That in and by the terms of the Will of Thomas Wilson, all of his property was given to his widow for life, and at her death there was given to certain of his children various items of property, and this included the $200,000.00 trust fund for the benefit of Mary Wilson her lifetime as hereinabove alleged, and at the request and insistence of some of the children of the said Thomas Wilson it was agreed that those who had received devisees or bequests under the Will should be charged with the same at their actual value before the distribution of the residue of the estate, which was given in the Will equally to all of the children except Thomas Wilson, Jr. That in complying with this agreement, the said Mary Wilson agreed that she should be charged with the sum of $200,000.00 as the value of the $200,000.00 trust fund in which she was given a life benefit, whereas, the defendants are informed and believe that the value of the same could in nowise have exceeded one-third of said amount, and the defendants are informed and believe that by this act she lost at least $133,000.00 and the remaining brothers and sisters benefited to said extent thereby."
It is also interesting to note that Mr. Peatross testified that he had never heard his wife assert any claim that she was entitled to any such interest in this trust fund as he now claims, and that he conceived the idea that he was entitled to all or some portion of it after her death when he was studying the several Wills in the quiet of his home.
In the return of the estate of Mary Wilson Peatross filed in the office of the Judge of Probate for Sumter County, Garnett Peatross did not list this present claim as an asset of the estate of his wife.
Mrs. Martha W. Graham has never made any contention, so far as the record shows, that she was entitled to the fee in the trust set up for her benefit, and the devisees of W.B. Wilson have made no claim that they are entitled to the trust fund set up for the benefit of W.B. Wilson.
The Court therefore finds that no party to the so-called family agreement or any party to the cause enrolled as Judgment Roll No. 10890 has ever made any such contention as is now set up by Garnett Peatross. Certainly, if any of the said parties have ever had such an understanding as to the effect of the so-called family agreement, some one or more of them would have asserted such claim long prior to this time. All of the acts and conduct of the parties to the so-called family agreement show that it was their intention that the will of Thomas Wilson with respect to said trust estates created by him should be carried out as he desired in his last will and testament and that the terms of the trust created thereby were in no respect varied, changed or modified.
"In such cases, previous colloquium and all writings which led up to the contracts are admissible, * * *. So, too, in such cases, the practical construction which the parties themselves have given them, as indicated by their acts under them * * *." Mr. Justice Hydrick for the full Court in Herndon v. Wardlaw, 100 S.C. 1, at page 8, 84 S.E., 112, at page 114.
Attention is called to the subsequent conduct of the parties to the so-called family agreement covering a period of twenty-one years, not for the reason that the matter can now be judicially inquired into, but merely to show that the parties themselves never put any such construction upon the agreement as is now contended by Garnett Peatross, but that their intention was as indicated hereinabove and that his intention was given full effect by the decree in Roll 10890 in which this agreement was inquired into and construed, and the rights of the parties thereunder and their interests in the property and funds involved were fixed and determined.
II. Is Garnett Peatross entitled to a 5/12 interest in said trust fund?
The will of Thomas Wilson, after first devising to his wife a life estate in all property owned by him and providing that his wife pay to his daughter, Mary, $5,000.00 a year out of the income from his entire estate during the life of his wife, Elizabeth, provided that after the falling in of the life estate of his wife Elizabeth as follows: "Unto my daughter. Mary, after the death of my wife, I give the income from Two Hundred Thousand Dollars, the principal sum of which shall be invested and the income paid over to her for and during the period of her natural life, in the manner hereinafter indicated. Should she leave a child or children surviving her, I give the principal sum of Two Hundred Thousand Dollars to such child or children, and should she have a child or children who shall predecease her, leaving a child or children, then such grandchild or children so surviving her shall take the share to which the parent would have been entitled, if living at the time of the death of my said daughter. Should she leave no child, or children or grandchild or children surviving, then, at her death the principal sum of Two Hundred Thousand Dollars, and any accretions and unexpended income shall be distributed among my heirs-at-law under the statute of distribution of this State, then of force."
The defendant, Garnett Peatross, contends that, under this item of Thomas Wilson's will, upon the death of Mary Wilson without children or grandchildren surviving, the heirs of Thomas Wilson should be ascertained as of the death of Thomas Wilson, and this trust fund would thereupon pass under this item to the heirs of Thomas Wilson as ascertained at his death and be distributable amongst his widow and children then living, as if he had died intestate as to this fund.
The issue is therefore raised as to the construction of this paragraph of the will of Thomas Wilson.
It is a cardinal principle of the law, and has been for many generations, that, in order to ascertain the intention of the testator, the intent must be ascertained from the four corners of the will, giving force and effect to all words used by the testator.
The case of Peoples Nat. Bank v. Harrison, 198 S.C. 457, 18 S.E.2d 1, 3, states the well-recognized rule, as follows: "In determining the intention of the testator, there are certain well-settled rules of construction. But it must be remembered that while ordinarily these rules of construction are not rules of property but only means and agencies created by the courts to enable them to ascertain the intent of the testator and to determine what he really meant by the words written in his will, yet if they are to be disregarded and laid aside, the courts frequently would have nothing to guide them in disposing of questions of the gravest import and directly affecting vital interests of the citizens. And to disregard these rules would frequently result in speculation and conjecture as to the meaning of the testator. But these rules are servants and not masters, and the primary consideration of the Court is to determine what the testator meant by the terms used in his will."
The latest expressions of the Supreme Court in no uncertain terms reaffirm the rule that technical rules of construction are not resorted to where the intention is clear and manifest reiterating the holding in the Harrison case, supra. Citizens Southern Nat. Bank v. Cleveland, 200 S.C. 373, 20 S.E.2d 811.
Stress was also laid on the proposition that the word "heirs" made it mandatory to determine this class as of the date of the death of the testator. Holder v. Melvin, 106 S.C. 245, 91 S.E., 97.
Bartlett v. Aycock, 109 S.C. 436, 437, 95 S.E., 188. "As this is a trust deed, it is not to be construed by the technical rules of the common law, but of equity, which always endeavors to ascertain the intention of the grantor."
Gadsden v. Desportes, 39 S.C. 131, 17 S.E., 706, 710. "It may be conceded, for the purposes of this case, that if the language had been to Regina Gadsden, and at her death to the issue of her body, with nothing more, then the rule in Shelley's case would have applied, unless there were other controlling circumstances hereafter to be averted to, to prevent such a result. But in this case there is something more * * *. These words unquestionably show that it was not the intent that the issue generally should take.", etc. (Emphasis added).
First Carolinas Joint Stock Land Bank v. Ford, 177 S.C. 40. 180 S.E., 562, 565. This case, decided in 1935, carefully reviews all of the existing authority in regard to rules of construction, citing numerous cases. Mr. Justice Fishburne in this decision says:
"The paramount and cardinal rule of construction of a deed is to ascertain the intention of the grantor as expressed by him in the deed, and then to give effect to that intention if it can be done without violating an established rule of law. Rhodes v. Black, 170 S.C. 193, 170 S.E., 158.
"Larger and more sensible rules of construction require that the whole deed should be considered together, and effect be given to every part, if all can stand together consistently with law; that an exposition favorable to the intention should be made, if not contrary to law; that the intention should be regarded as looking rather to the effect to be produced than the mode of producing it; that too minute a stress should not be laid on particular words, if the intention be clear, and that, if the deed cannot operate in the mode contemplated by the parties, it should be construed in such manner as to operate, if possible, in some other way. Chancellor v. Windham, 1 Rich., 161, 42 Am. Dec., 411.
"The object of construction as to deeds, in fact, as to all papers in contest before the court, is to reach the intention of the parties, because it is this which must control; otherwise, the contract would be the contract of the court and not of the parties. McCown v. King, 23 S.C. 232.
"If a question of law arises upon the construction of a deed, it is the province of the court to construe it, and to decide from the language what the intention of the party was. When the intention of the parties can be plainly ascertained, arbitrary rules are not to be resorted to. The rule is that the intention of the parties is to be ascertained by considering all of the provisions of the deed, as well as the situation of the parties, and then to give effect to such intention, if practicable, when not contrary to law. Pope v. Patterson, 78 S.C. 334, 58 S.E., 945; Crawford v. [ Atlantic] Lumber Co., 79 S.C. 166, 60 S.E., 445; Smith v. Clinkscales, 102 S.C. 227, 85 S.E., 1064; Antley v. Antley, 132 S.C. 306, 128 S.E., 31. * * *
"In Duckett v. Butler, 67 S.C. 130, 45 S.E., 137, 138, the court said: `When not in violation of some rule of law, the intention of the maker must prevail, and such intention should be ascertained from a consideration of the whole instrument. According to our decisions, it is always open to inquiry whether the grantor or testator used the words "heirs" according to its strict and proper acceptation or in a more inaccurate sense to denote "children." * * * Cases like Whitworth v. Stuckey, 1 Rich. Eq., 404; Bethea v. Bethea, 48 S.C. 440, 26 S.E., 716; Simms v. Buist, 52 S.C. 554, 30 S.E., 400, do not conflict with this view, for there was nothing in the instruments under consideration in these cases to show that such terms as "lawful issue of body", "heirs of her body," were used in a restricted sense, denoting children.'"
The intention of the testator, Thomas Wilson, as expressed in his will, is the controlling law of this case. An interpretation that fits into the whole scheme or plan of the will is most apt to be the correct interpretation of the intent of the testator. In Quick v. Owens, 198 S.C. 29, 15 S.E.2d 837, 137 A.L.R., 201, quoting from the syllabus, we find: "In construing a clause in a will the court was required to consider all the words contained in it, also its relation to other portions of the will, in order to ascertain if possible the testator's real intention."
In 69 C.J., 102, it is said: "In the absence of an expressed intention to the contrary, in construing a Will, favor will be accorded to those beneficiaries who appear to be the natural or special objects of the testator's bounty."
Every word or phrase in a will must be considered and, if practicable, effect must be given to them. Burton v. Burton, 113 S.C. 227, 102 S.E., 282.
Only a very strong reason can justify the treatment of any of the testator's words in his last will and testament as surplusage. Certainly there is no inconsistency in any of the terms and provisions of Item III, subdivision 3, of the will of Thomas Wilson relating to the trust created for the benefit of his daughter, Mary Wilson. Therefore, the Court must and will give force and effect to each word in this clause of said Will.
In the case of Kennedy v. Kennedy, 190 S.C. 53, 2 S.E.2d 33, 35, the Court, speaking through the late Chief Justice Stabler, quotes with approval the sound and constructive statement from 28 R.C.L., 218, as follows: "The intention of the testator need not be declared in express terms in the will, but it is sufficient if the intention can be clearly inferred from particular provisions of the will, and from its general scope and import. The Courts will seize upon the slightest indications of that intention which can be found in the will to determine the real objects and subjects of the testator's bounty. The inference as to the intent need not be irresistable or such as to exclude all doubts possible to be raised, but must, nevertheless be such as to leave no hesitation in the mind of the Court, and must not rest on mere conjecture."
Thomas Wilson's mind was directed, as evidenced by this clause creating this trust fund, to the future. He uses the following terms in creating this trust: "Should she leave no issue surviving," "then at her death", "accretions and unexpended income", and "under the Statute of Distributions then of force." This trust fund was not to be set up by the trustees until the death of Elizabeth Wilson. the widow of Thomas Wilson. The whole plan and scheme of the will with respect to the final distribution of the trusts estates was directed to the future, not only as to enjoyment but as to vesting.
These identical terms are also used with reference to the trusts created for the benefit of W.B. Wilson, for Thomas Wilson and for C.M. Wilson, except that as to C.M. Wilson he provided that in the event his son, C.M. Wilson, died leaving no children surviving, the widow of C.M. Wilson should take one-third of the trust property provided by the will for the benefit of C.M. Wilson. This provision as to C.M. Wilson expressly shows, taken in consideration with the other devises and bequests of the trust estates under the will, that the testator desired the widow of C.M. Wilson to take a one-third share of the trust fund in the event C.M. Wilson died without children, which she could not have taken unless the express provision had been made in the clause creating the trust estate for the benefit of C.M. Wilson. This negatives the idea as to the other clauses in his will which used almost the identical language, and especially the clause of the will creating the trust fund for the benefit of Mary Wilson that testator intended his heirs to be determined as of the date of his death.
The Court is satisfied that the terms of the will of Thomas Wilson creating the trust for the benefit of Mary Wilson, when read in the light of the scheme of the whole will, show the manifest and plain intention of the testator, that, if Mary Wilson should die leaving no child or children or grandchild surviving, the fund in question should go to those persons who would answer the description of his heirs-at-law at the time of her death.
The Court must give force and effect to all of the words and phrases of this provision of the will of Thomas Wilson hereinabove quoted, and when this is done and the whole plan and scheme of the will is considered, the conclusion is irresistable and unescapable.
In the argument before me, Counsel for Garnett Peatross laid great stress upon his contention that the word "heirs" as used in the clause under consideration refers to the heirs of Thomas Wilson as of the date of his death. This would undoubtedly be true if there were no words in the will showing a contrary intent.
Chancellor Wardlaw in his learned decision in Evans v. Godbold, 6 Rich. Eq., at page 26, 27 S.C. Eq., at page 10, points out that the words "heirs" used alone would refer to the date of the testator's death, but says "unquestionably it is competent for a testator if he thinks fit, to limit any interest to such persons as shall at a particular time sustain a particular character." This opinion then points out that if the word "surviving" as used in that will was not given some significance, it would be a disregard of the intention of the testator.
A careful reading of the clause of the will of Thomas Wilson under consideration, with particular reference to the idea of futurity contained in this clause, shows the obvious intention that Thomas Wilson had in mind a chart for the distribution of the corpus of said trust fund at some future, indefinite period, to the then unascertained beneficiaries upon the death of Mary leaving no children surviving at the time of her death. The testator's mind was directed to that period when and if his daughter, Mary, should die leaving no children surviving; he uses the following terms: "after the death of my wife, I give the income;" "should she leave a child or children surviving her"; "then such grandchild or children so surviving her:" "if living at the time of the death of my said daughter;" "should she leave no child or children;" "then at her death:" "any accretions and unexpended income shall be distributed;" and "under the Statute of Distributions then of force."
With reference to the words as used in the clause of the will before this Court, the words providing for the distribution of the corpus by the trustees and the "accretions and unexpended income therefrom", taken together with the words "under the Statute of Distributions then of force," clearly show the manifest intent of the testator that this fund was to be distributable to his heirs ascertained as of the date of the death of Mary Wilson.
With reference to such disposition of accretions and unexpended income, and the intention indicated thereby, the Annotator in 49 A.L.R., at page 185, has this to say: "An intention that the persons to take are to be ascertained upon the termination of the precedent estate may be inferred from a direction that the principal and accrued unexpended income shall be divided at the death of the life tenant, it being unlikely that the testator intended that unexpended interest remaining at the death of the life tenant should vest before it was in existence," citing United States Trust Co. v. Nathan, 1921, 196 App. Div., 126, 187 N.Y.S., 649, affirming 1920, 112 Misc., 502, 183 N.Y.S., 66, affirmed without opinion in 1922, 233 N.Y., 505, 135 N.E., 894. In re Southworth's Estate, 1906, 52 Misc., 86, 102 N.Y.S., 447.
In M'Meekin v. Brummet, 2 Hill's Eq., 638, it is held: "* * * Where property is given by will, to be distributed among a class of persons at some future time, or on some future contingency, all are let in who come into existence before the time or happening of the event, and none can take but those then answering the description." (Syllabus.) (Emphasis added.)
And again in Re Warren's Will, 176 S.C. 455, 180 S.E., 458, 459 (decree affirmed on appeal): "Where there is a gift to a class, at a certain time, or upon the happening of a certain event, only those in existence at such period can take; the pre-deceased ones or their representatives are excluded. Corbett v. Laurens, 5 Rich. Eq., 301, 324; Dickson v. Dickson, 23 S.C. 216, 224."
In 69 C.J., at page 274, we find the following: "* * * Where the allusion is distinctly made with reference to the statutes which shall be in force at some particular time after the testator's death, that circumstance is a strong indication of an intention that the class to be benefited is to be ascertained as of that time rather than at the testator's death."
In White v. Underwood, 215 Mass. 299, 102 N.E., 426, the testator, after making certain provisions for the payment to his children of the income of the trust estate, provided as follows: "Upon the death of the said Anna M. Hubbard, whenever it shall take place, this trust shall cease; and my said trustees and the survivors and the survivor of them, shall then pay from the said trust estate, or the proceeds thereof, all debts and demands, if any, which shall [then] exist upon or against the same, and distribute all the remainder thereof among my heirs at law according to the statutes which shall be in force in said commonwealth regulating the distribution of intestate states."
The question presented was whether the heirs-at-law of the testator to whom the remainder was given were to be determined as of the date of the testator's death or as of the time for distribution. The Court said: "It seems to us that the obvious meaning of the language used in this will shows it to be the intention of the testator that the remainder should go to those who would be his heirs at law at the [date of the] death of his daughter, Anna, and not those who were his heirs at the date of his own death. The date of her death as indicating the time of vesting is emphasized; `whenever it shall take place,' the trust is to close and the property is to be distributed `then'. Harding v. Harding, 174 Mass. 268, 54 N.E., 549. By the expressed words of the clause in question the distribution is to be made according to the statutes `which shall then be in force', he well may have anticipated, what has proved to be the case, that the persons who would share in the distribution, and the proportion they would take under the statutes that would be in force at the termination of the trust would be different from those who would take under the statutes existing at the time of his own death. It is unreasonable to assume that he intended to have the persons in whom the remainder vested ascertained under the law existing at one time and to have the manner and proportion of the distribution among those persons determined at another time by a different statute."
On July 19, 1921, very shortly after the death of Thomas Wilson, his widow and all of his children, except Thomas Wilson, Jr., signed a document which has been referred to as the family agreement, in which document they stated that they knew the manifest intention of Thomas Wilson frequently expressed to each of them, with a knowledge of the manifest intention of Thomas Wilson present in their minds, upon the death of W.B. Wilson they, and each of them, so construed the clause of Thomas Wilson's Will creating a trust fund for the benefit of W.B. Wilson, which clause is practically identical with the clause here under consideration, so that the said trust fund was divided amongst the heirs of Thomas Wilson surviving as of the date of the death of W.B. Wilson, or, in other words, among the heirs-at-law according to the Statute of Distributions then (at that time) of force.
It is significant that no claim on the part of the Estate of W.B. Wilson, nor on the part of the Estate of E.R. Wilson has been made in relation to any of said trust estates, as is contended here by the defendant, Garnett Peatross.
Before me is the order of his Honor Judge A.L. Gaston made in the "Accounting Case" on demurrer filed by the Trustees, one of whom was Mary Wilson Peatross. This order of Judge Gaston finds and holds as follows:
" As to who will ultimately constitute the class of heirs-at-law, upon the falling in, or termination of the life estate depends upon a double contingency, to wit: (1) the death of Mrs. Peatross without child or children, or other issue * * * and (2) those entitled to take at that time under the statute of distribution, then of force or the law of the State then of force.
"So that the rights of the plaintiffs and all similarly situated, to take the trust funds, is remote and the actual parties who will take are uncertain, and not ascertained now * * *." (Emphasis added.)
After the order overruling the demurrer was filed in the "Accounting Case", Mrs. Mary Wilson Peatross filed her answer in the "Accounting Case" in which she alleged as follows: "Further answering these defendants deny that the contingent remaindermen referred to are numerous but that there are not more than eighteen possible contingent remaindermen, all of whom the plaintiff, Martha W. Graham, well knows, and these defendants are informed and believe that although the said Martha W. Graham undertook to have others to join with her in this suit, she was only able to procure her son, Robert Graham, from among her own children, and Charles H. Wilson, who is not interested in any of the matters set forth in the complaint, he being an adopted son of John Wilson, and as to him these defendants are informed and believe that he has petitioned the Court to have his name withdrawn as a party plaintiff." (By way of parenthesis no such petition was ever filed.)
From the written arguments submitted by the various attorneys, it appears that all parties have agreed and do still agree that the remainder is a contingent one that the event of its vesting was uncertain and the persons to take were uncertain, with which this conclusion of all Counsel I concur.
In the concurring opinion of Mr. Justice Cothran in the case of Avinger v. Avinger, 116 S.C. 125, 107 S.E., 26, 28, we find a very clear exposition of the difference between vested remainders and contingent remainders, and a statement that the very character of the remainder is the determining factor as to whether the estate vests and the parties taking are ascertained as of the death of the life tenant or as of the death of the testator. Judge Cothran says in the Avinger case:
"In my opinion, the decisions of this court require that to create a vested remainder the following essential elements must appear: (1) The estate in remainder must be fixed and certain in the remaindermen at the time of its creation: (2) implied in the foregoing, the vesting of the remainder must not depend upon the performance or happening of a condition precedent; (3) the person to take the remainder must be an ascertained person in being; (4) the enjoyment of the possession of the estate in remainder is simply postponed; there being no obstacle to such enjoyment except the preceding particular estate. * * *
"The ultimate point at issue in the case is whether the distribution of the estate, after the falling in of the life estate, shall be per capita among the heirs of the testator living at the time of the death of the life tenant, or per stripes among the heirs of the testator living at the time of his death. This issue is to be determined by the character of the remainders devised to the heirs of the testator, whether vested or contingent." (Emphasis added.)
One of the most logical and well-reasoned opinions on this question is found in the case of in Re Vander Roest, 95 Misc., 21, 160 N.Y.S., 215, at page 216, in which the Court says:
"It seems to me that the intention of the testator is clear to postpone the vesting of the estate until the death of the life tenant or until her remarriage. They, the children, were to take through the medium of a power in trust, and the time of the vesting was thus deferred, in form at least, until the time of distribution. It is a case, then, where, as the cases express it, futurity is annexed to the substance of the gift, and warrants the application of the principle that where a future interest is devised, not directly to a given person, but indirectly through the exercise of a power conferred upon trustees, the devise is designed to be contingent, and survivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift. Dickerson v. Sheehy, 156 App. Div., 101-104, 141 N YS., 35, affirmed 209 N.Y., 592, 103 N.E., 717, citing Matter of Baer, 147 N.Y., 348, 41 N.E., 702. The court in the same case (156 App. Div., at page 104, 141 N. Y.S., at page 37) states as follows:
"`I am aware of the existence of a rule which favors the vesting of estates, but that rule is never applied when the intention of the testator, as gathered from the whole will, is that the estate should not vest; in other words, all of the rules laid down for the construction of wills yield to the actual intent of the testator if that can be ascertained from the will itself.'
"The general rule of construction applicable in a case of this character is that where there is no gift, but a direction to executors or trustees to pay or divide and to pay at a future time, the vesting in the beneficiary will not take place until the time arrives. Matter of Keogh, 47 Misc., 37-43, 95 N.Y.S., 433, affirmed by Court of Appeals without opinion, 186 N.Y., 544, 79 N.E., 1109.
"Clearly the remainder here is contingent, and not vested, and the only persons who are entitled to share in the distribution of the fund are the children of the testator who survived the life tenant, Mary Vander Roest."
In the case of Gourdin v. Shrewsbury, 11 S.C. 1, the very same question was at issue in that case as is before the Court in this case, and the Supreme Court has this to say: "The only mode of reading the language of this devise so as to preserve the intention of the testator, is to limit the devise, etc., to `legal representatives,' to such as were in being at the death of the daughter last dying. It is clear that the testator referred to the statute of distributions solely for the purpose of describing the class of persons to whom he intended his estate to go, and the relative order of succession as among that class; that in conferring a contingent remainder upon individuals in that class, he intended to select as his devisees such as should appertain to that class at the time the contingency happened that should vest the estate. This would exclude persons coming in as devisees of a person entitled to the appellation `legal representatives' but who died before the happening of the contingency that vested the estate. It would exclude the devisee and representatives of Mrs. Moultrie, because survivorship and the happening of the contingency must occur, whereas the death of Mrs. Moultrie was the very event on which the future estate to `legal representatives' depended." (Emphasis added.)
I am convinced that it was the intention of Thomas Wilson, by the use of the words "then of force" in reference to the Statute of Distributions of the State of South Carolina, to select as his devisees such of his heirs-at-law as should appertain to that class at the time the contingency happened that should vest the estate, to wit, the death of Mrs. Mary Wilson Peatross without children surviving.
In the case of Boykin v. Springs, 66 S.C. 362, 44 13 S.E., 934, at page 937, the Court says: "A contingent remainder, technically speaking, is not an estate in lands, but is the possibility of one. If the remaindermen be ascertained, it is a possibility coupled with an interest, and it is devisable, transmissible, and in equity assignable; but, if the remaindermen be not ascertained, such bare possibility is not capable for devise, transmission or assignment. 20 Ency. Law., 849."
In the case before me the remainders were non-transmissible.
For the reasons set forth, the Reports of the Master are hereby affirmed and all Exceptions thereto are overruled.
Messrs. Epps. Epps, of Conway, S.C. Counsel for Appellant, cite: As to "Equity of the Case": 114 S.C. 306, 103 S.E., 551; 145 S.C. 1, 142 S.E., 740; 199 S.C. 23, 18 S.E.2d 592; 121 S.C. 94, 113 S.E., 465; 135 S.C. 149, 133 S.E., 463; 176 S.C. 1, 179 S.E., 464. As to "Rule of Construction of Wills": 177 S.C. 40, 180 S.E., 562; 45 N.J. Eq., 426, 18 A., 207. As to "A Rule of Property": (U.S.), 20 F., 756, 763; 81 Miss., 90, 32 So., 937. As to Intent of Testator: 89 S.C. 198, 71 S.E., 959; 10 S.C. 386; McMul. Eq., 206, 16 S.C. Eq., 201; 122 S.C. 451, 115 S.E., 603; 161 S.C. 235, 159 S.E., 546. As to Contingent Remainder: 66 S.C. 36, 44 S.E., As to "Time for Ascertaining Heirs": 107 S.C. 101, 91 S.E., 986; 116 S.C. 125, 107 S.E., 26; 122 S.C. 451, 115 S.E., 603; 160 S.C. 374, 158 S.E., 733; 165 S.C. 35, 159 S.E., 546; 148 S.C. 30, 145 S.E., 549; 152 S.C. 328, 149 S.E., 141; 184 S.C. 243, 192 S.E., 273; 1 Hill's Chancery, 357 (10 S.C. Eq.); 160 S.C. 374, 158 S.E., 733; 173 S.C. 243, 175 S.E., 501; 45 S.C.L., 510; 17 S.C. 532; 37 S.C. 255. As to "Heirs As a Class", and "Class" in General: 107 S.C. 101, 91 S.E., 986; 116 S.C. 125, 107 S.E., 26; 161 S.C. 235, 159 S.E., 546; 199 S.C. 197, 18 S.E.2d 661; 18 S.C. Eq., 396. 934; 154 S.C. 78, 151 S.E., 199. As to Intent of Testator as Shown in the Will: 32 S.C. Eq., 264; 35 S.C. Eq., 146; 102 S.C. 361, 86 S.E., 771; 184 S.C. 243, 192 S.E., 293; 161 S.C. 235, 159 S.E., 546; 116 S.C. 125, 107 S.E., 26; 148 S.C. 30, 145 S.E., 549; 152 S.C. 328, 149 S.E., 141. As to "Testator Having Exhausted His Specific Wishes": 145 Mass. 345, 15 N.E., 660; 276 Mass. 580, 177 N.E., 621. As to Accumulations of Unpaid Income from Life Estate at Death of Life Tenant: 5 S.C. Eq., 65; 8 S.E. Eq., 517; 197 S.C. 6, 14 S.E.2d 361. As to Record for Appeal: 98 S.C. 431, 82 S.E., 676; 107 S.C. 109, 91 S.E., 973; 175 S.C. 254, 178 S.E., 819.
Mr. George D. Levy, Mr. S.K. Nash, Mr. A.S. Merrimon, and Mr. L.E. Purdy, all of Sumter, S.C. Counsel for Respondents other than Martha W. Graham and Thomas Wilson, Jr., cite: As to Intent of Testator Controlling Disposition of Trust Fund: 198 S.C. 475, 18 S.E.2d 1; 200 S.C. 373, 20 S.E.2d 811. As to Legal Title of Trust Fund Being Vested in Trustees by Testator: 3 Rich., 467; 31 S.C. 13, 9 S.E., 804; 35 S.C. 54, 14 S.E., 491; 54 S.C. 413, 32 S.E., 513; 215 Mass. 299, 102 N.E., 426; 13 N.Y.S.2d 178; 187 N.Y.S., 649; 135 N.E., 894; 160 N.Y.S. 216. As to Contingent Remainders: 39 S. c., 131, 17 S.E., 706; 10 S.C. 376; 116 S.C. 125, 107 S.E., 26; 66 S.C. 36, 44 S.E., 934, 937; 2 Hill's Eq., 235; 26 S.C. 451, 2 S.E., 474; 121 S.C. 243, 113 S.E., 793; 11 S.C. 1, 98 S.E., 727; 185 S.C. 303, 194 S.E., 817. As to "Time for Ascertaining Heirs": 49 A.L.R., 184, Ann.; 136 N.C. 187, 48 S.E., 633; 67 L.R.A., 440; 88 N.Y., 174; 187 N.Y.S., 649; 102 N.Y.S., 447; 79 Ohio St., 358, 87 N.E., 267; (Mo.), 98 S.W.2d 765; 67 S.C. 130, 45 S.E., 137-138; 106 S.C. 245, 94 S.E., 97; 109 S.C. 437, 95 S.E., 188; 39 S.C. 131, 17 S.E., 706; 180 S.C. 562, 177 S.E., 706; 170 S.C. 193, 170 S.E., 158; 23 S.C. 232; 198 S.C. 29, 15 S.E.2d 837; 113 S.C. 227, 102 S.E., 282; 69 C.J., 274; 215 Mass. 299, 102 N.E., 426.
Mr. M.M. Weinberg, of Sumter, S.C. Counsel for Respondents Martha W. Graham and Thomas Wilson, Jr., cites: As to "The Nature of the Remainder Bequeathed": 11 S.C. 1; 39 S.C. 131, 17 S.E., 706; 10 S.C. 376; 116 S.C. 125, 107 S.E., 26; 66 S.C. 36, 44 S.E., 934, 937; 2 Hill's Eq., 235; 26 S.C. 450, 2 S.E., 474; 121 S.E., 243, 113 S.E., 793; 176 S.C. 455, 180 S.E., 458. As to "Time for Ascertaining Heirs": 26 S.C. 450, 2 S.E., 474; 6 Rich. Eq., 26 (27 S.C. Eq.,); 11 S.C. 1 at p. 28; 185 S.C. 303, 194 S.E., 817; 268 Pa., 379, 111 A., 922; 253 Ill., 620, 97 N.E., 1077; 17 Cal.App., 502, 120 P., 428; 215 Mass. 299, 102 N.E., 426; 234 Mass. 217, 125 N.E., 159; 187 N.Y.S., 649; 160 N.Y.S., 216; 198 S.C. 457, 18 S.E.2d 1; 190 S.C. 53, 2 S.E.2d 33; (Ga.), 24 S.E.2d 381; 165 S.C. 266, 163 S.E., 784; 200 S.C. 373, 20 S.E.2d 811; 148 S.C. 369, 146 S.E., 226; 198 S.C. 29, 15 S.E.2d 837; 65 S.C. 390, 43 S.E., 878.
January 24, 1944.
The circuit decree which is the subject of this appeal has been carefully considered in the light of appellant's exceptions and the earnest argument of his able and industrious counsel, and we find it satisfactory. It will be published and is adopted as the judgment of this Court except in one particular, wherein it is modified as will now be fully set forth.
An issue in the contest was whether income paid to Mary Wilson Peatross during the last year of her life from the large trust estate, the subsequent destination of which furnishes the main issue in the litigation, was properly so paid or must now be refunded by Mary's executor, or whether, as claimed by him, he is entitled to the full income, paid and unpaid but accrued for the "trust year" in which she died.
The report of the highly respected Master of Sumter County, the Honorable Hugh C. Haynesworth, is not prosaic as such documents usually are, but on the contrary is full of wit and wisdom, as well as sound and reasoned law. However, we think it contains one erroneous conclusion, relatively very small; it is the subject of pertinent exceptions and should, and will, be corrected.
The learned Master held that Mary Wilson Peatross was entitled to the income from the trust fund annually from the date of the death of her mother, Mrs. Wilson, and that she and her estate had no right to the income accruing after the last anniversary of the death of her mother, although, of course, income accrued during the year of the death of Mrs. Peatross and, indeed, several thousand dollars of income which accrued and was collected between the last anniversary of the death of Mrs. Wilson and the death of Mrs. Peatross was paid to the latter. This holding was emphasized for it was contained in a supplementary report, apparently having been overlooked by the Master in his main report. Several exceptions to the latter involved the question but it was similarly left out of consideration by the trial Judge although he expressly mentioned it in the beginning of his decree, adopted as the judgment of this Court with the modification here treated, or it might be said addition rather than modification, for consideration of it was omitted in the decree, as has been stated. But the general, pro forma confirmation of the Master's report carried with it decision of the point on circuit, adverse to appellant.
The words of the will created an annuity for the life support of the beneficiary, Mrs. Peatross. Such is ordinarily apportionable to the date of the death of the annuitant. Cullum v. New York Life Ins. Co., 197 S.C. 6, 14 S.E.2d 361, 135 A.L.R., 867, and earlier decisions there cited.
However, Thomas Wilson, the testator, evidently did not so fully intend for he said in paragraph 3 of Item III of his will, in the event that Mary should die without surviving issue, which happened, that the principal sum of the trust "and any accretions and unexpended income" should be distributed as he set forth. This is plain, and "unexpended income" was such as may have accrued at the time of Mary's death but had not been paid to her by the trustees. The result is, not that Mary's estate is entitled to accrued income not paid to her in her lifetime, as contended by appellant, but, on the other hand, the estate of Mary is not obligated to refund income from the trust estate paid to her in her lifetime.
With the modification stated, the judgment of the Circuit Court is affirmed and the decree so stands adopted as the judgment of this Court.
MR. CHIEF JUSTICE BAKER, MESSRS. ASSOCIATE JUSTICES FISHBURNE AND STUKES, and CIRCUIT JUDGES T.S. SEASE and E.H. HENDERSON, ACTING ASSOCIATE JUSTICES, concur.