Opinion
15342
December 15, 1941.
Before OXNER, J., Greenville County, April, 1941. Affirmed.
Action by the Peoples National Bank of Greenville, S.C. executor of the estate of W.C. Cothran, deceased, against Grace Smith Harrison and others for construction of a will. From an adverse judgment, defendants Bessie C. Wofford and others appeal.
The Order of Judge Oxner, required to be reported, follows:
This action was instituted by the plaintiff for the purpose of having the Court construe the will of the late lamented W.C. Cothran. He departed this life on June 1, 1940, leaving of force his last will and testament which was executed on March 21, 1940. The issues were referred to the Master. The only testimony taken before the Master was an outline of the family history. The Master has made his report and the case now comes before me on exceptions by certain of the parties of the construction of the will made by the Master.
The testator was a member of the Greenville bar for almost half a century where he achieved great success in his chosen field. He was frequently appointed as Special Judge and as Acting Associate Justice of the Supreme Court of this State. In this field he also displayed unusual ability. He was never married and was the youngest of the six children of J.S. Cothran and Emma Perrin Cothran. His father, mother, and all of his brothers and sisters predeceased him. He left surviving nine nephews and nieces and eighteen great-nephews and great-nieces. One of his brothers was the late lamented T.P. Cothran, a distinguished lawyer and for years an Associate Justice of the Supreme Court.
The will of the testator consists of eleven items, in the first ten of which he makes various specific legacies and gifts to numerous parties, some of whom were related to him, and some of whom were not, but were remembered because of friendship or kindness to the testator. Most of these legacies or gifts represent disposition of personal effects, china, silver and office equipment. The monetary legacies in these ten items aggregate approximately $8,600.00, of which $4,500.00 are to certain relatives as follows: To his niece, Margaret C. Holstein, of Edgefield, $500.00; to his great-nephew, Clarke P. Cothran, $2,000.00 in a trust fund; and to his great-niece, Aimee Cothran, $2,000.00 in a trust fund. It will be observed that in the monetary legacies to relatives only one out of five nieces is remembered and only two great-nieces and great-nephews out of eighteen are remembered. The bulk of his estate, consisting of approximately $90,000.00, is disposed of in the residuary clause, embodied in Item 11, which is the last item in the will, and this residuary clause is as follows: "Item Eleven: After disposing of my estate as herein mentioned, should there be any balance remaining, I direct that it be equally divided between the children of my nephew, J. Allen Smith, my niece, Bessie C. Wofford, and my nieces, Emma C. McMahan and Sallie C. Lambeth."
The foregoing residuary clause is the one which the Court is asked to construe.
J. Allen Smith is still living and at the time of the death of the testator, he had living seven children, whose ages ran from twenty-three to thirty-one years. Bessie C. Wofford is still living, was approximately thirty-six years of age at the time of the death of the testator and had two children, fifteen and eight years old. Mrs. Emma C. McMahan is still living, was approximately thirty-one years old and had three children, seven, two and one years old, respectively, Mrs. Sallie C. Lambeth is still living and was approximately thirty-three years old and at the time of the death of the testator had one child two years old.
The children of J. Allen Smith contend that the devise to them is per capita and that they take seven-tenths of the residuary estate and Mrs. Wofford, Mrs. McMahan and Mrs. Lambeth, each, one-tenth.
Mrs. Wofford contends that the devise to the children of J. Allen Smith is per stirpes and that those children together take one-third; that she takes one-third; and that Mrs. McMahan and Mrs. Lambeth take one-third together.
Mrs. McMahan and Mrs. Lambeth contend that the devise to the children of J. Allen Smith is per stirpes and that these children take one-fourth, Mrs. Wofford one-fourth and each of them one-fourth of the residuary estate.
The Master sustained the contention of Mrs. Wofford, to which construction appropriate exceptions are made by the remaining residuary legatees.
If the children of J. Allen Smith take per capita, it becomes unnecessary to determine whether the division to the nephews and nieces named should be in the proportion of one-third or one-fourth. I shall, therefore, first approach the determination of that issue.
It is elementary that the cardinal rule of construction is to ascertain and effectuate the intention of the testator unless same contravenes some well-settled rule of law or public policy. In doing so the Courts frequently encounter considerable difficulty. Parol testimony showing declarations or statements of the testator as to the meaning intended by the language used in the will, is of course, inadmissible. However, testimony as to the circumstances surrounding the testator are very frequently admissible. It is unfortunate that some of these circumstances surrounding the testator in this case were not developed by testimony.
In arriving at the intention of the testator, the Courts are not concerned with what he ought or ought not to have done. A testator having a right to his property, the Courts are only concerned with construing the will as it is written.
In determining the intention of a 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.
In construing the foregoing residuary clause, the question as to whether there shall be a stirpital or per capita distribution arises.
The rule in England, as stated by the elementary writers, is this: "Where a bequest is made to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation, as to my brother (A) and the children of my brother (B), the distribution is made per capita, and not per stirpes, in which case A takes only a share equal to that of the children of B."
The foregoing English rule was adopted in the early decisions of this State and has been consistently followed, as shown by the following cases: Cole v. Creyon, 1833, 10 S.C. Eq., 311, 1 Hill, Eq., 311, 26 Am. Dec., 208; Conner v. Johnson, 1834, 11 S.C. Eq., 41, 2 Hill, Eq., 41; Perdrian v. Wells, 1851, 26 S.C. Eq., 20, 5 Rich. Eq., 20; Barksdale v. Macbeth, 1854, 28 S.C. Eq., 125, 7 Rich. Eq., 125; Dupont v. Hutchison, 1858, 31 S.C. Eq., 1, 10 Rich. Eq., 1; Feemster v. Good, 1880. 12 S.C. 573; Rogers v. Morrell, 1909, 82 S.C. 402, 64 S.E., 143, 129 Am. St. Rep., 899.
In the case of Conner v. Johnson, supra, Chancellor Harper said: "I consider it to be very well settled, that if there be a devise to an individual designated by name, and to other individuals designated as a class, as to A and the children of B; or if it be to the children of A and the children of B, all the individuals take equally, and per capita."
It would unduly lengthen this decree to review the foregoing cases. The case of Barksdale v. Macbeth, supra, illustrates the application by the Court of this rule. There the testator directed his property, after the death of the life tenant "be the absolute property of such of my children as may be then living, and the issue of such as may be dead; to be equally divided between them."
It was held that the child and issue of predeceased children of the testator, living at the death of the life tenant took equally and per capita.
This rule has been criticized in our own as well as other jurisdictions.
Chancellor Harper observed in Cole v. Creyon: "I am not sure that if a different rule had been adopted, the intention of testators would not have been more frequently affected."
But he adds: "The rule being settled however, must be adhered to."
In the case of Barksdale v. Macbeth, supra, Chancellor Dunkin said: "That this mode of construction will yield to a very faint glimpse of a different intention in the context."
In the subsequent case of Wessenger v. Hunt, 9 Rich. Eq., 459, Chancellor Dargan said: "In one case, it is said, that the faintest glimpse of such intention is sufficient. But this, perhaps, would be going too far."
Evidently he was referring to the above quotation from the case of Barksdale v. Macbeth.
The Court has adopted two modifications or exceptions to the foregoing general rule.
One of these exceptions is stated in the case of Conner v. Johnson, supra, as follows: "If there be a devise to several ascertained individuals and a class of unascertained individuals, to be ascertained on a future event, that class will take a share equal to that of each of the ascertained individuals and no more * * *. It depends on this, that the different interests must vest at different times. The shares of the ascertained individuals must vest at the death of the testator; that of the unascertained individuals, cannot vest until the event happens by which they are to be determined, and upon any other construction it would be impossible to determine what interest did vest at the testator's death."
The other exception is stated by the Court in Barksdale v. Macbeth, supra, as follows: "Wherever the Court is compelled by the terms of description in a devise or grant, to resort to our Statute of Distributions for the purpose of ascertaining the objects of a gift, we must also resort to the statute to ascertain the proportions in which the donees shall take, unless the instrument making the gift indicates the intention of the donor that a different rule of distribution should be pursued."
While there has been, as above pointed out, some criticism of this rule, with the modifications above set out, it is well established in South Carolina, and so far as I am able to find, there has been no departure from it.
An exhaustive annotation on this question is contained in 16 A.L.R., pages 15 to 152. (See particularly pages 83 and 98). There are other annotations in 31 A.L.R., 799, 78 A.L.R., 1385, and 126 A.L.R., 157. A careful study of these annotations discloses that the majority of the Courts in this country still follow the old English rule, although in some instances criticizing it, but regarding it as so firmly established that to insure stability they adhere to it. There are some Courts that have declined to follow it, taking the view that a stirpital distribution will more likely carry out the intention of the testator. There is, also, to be found a very interesting criticism of the rule in the April, 1936, issue of the Harvard Law Review at page 903.
The New Jersey Court in the comparatively recent case of Bailey v. Orange Memorial Hospital, N.J. Ch., 1917, 102 A., 7, 9, in alluding to the criticism of this rule, said: "Some of the defendants insist that this rule is too harsh, unfair, and antiquated, and not in accord with the modern spirit of equitable relief. Assuming this criticism, under the circumstances, to have some merit, still, as Mr. Justice Swayze, in delivering the opinion of the Court of Errors and Appeals in the case cited [ Van Houten v. Hall, 73 N.J. Eq., 384, 67 A., 1052], remarked, this is the rule recognized in this state, notwithstanding the criticism of it in Romme v. Counter (1822), 6 N.J.L., 111, 10 Am. Dec., 390."
It may not be amiss to add that in the large majority of the cases where the per capita rule has been criticized, there was involved direct descendants of the testator, as, for instance, children and grandchildren, and the testator was seeking to remember all his descendants, substituting the children of those who were dead. This criticism could not apply to the will in controversy because all of the beneficiaries were collaterals and among those, testator did not seek to remember all.
In the case of Wessenger v. Hunt, supra, our Court said: "The intensity of a man's love for his offspring, is in proportion to their propinquity."
But "this sentiment does not exist as to collaterals."
The per capita rule, as it is sometimes referred to, being so well settled, it remains to inquire whether either of the exceptions or modifications above referred to applies to the will in controversy. The devisees, under the terms of the will, all take at the same time, namely, at the death of the testator. The children of Allen Smith who were living at the death of the testator are clearly ascertained, so that the first exception does not apply. Obviously the second exception does not apply because there is no necessity whatever to resort to the Statute of Distributions in order to determine who shall take.
There further remains for determination whether there are any satisfactory indicia of the testator's intent that the devise shall be per stirpes. A careful reading of this will fails to disclose any circumstances to overcome the presumption that the testator intended a per capita distribution.
The words "equally divided" are ordinarily construed by the Courts to import a division per capita. See annotation 16 A.L.R., 23. The words "equally divided" and "share and share alike" may well be compatible with a per stirpes distribution otherwise clearly indicated, but in the absence of language in the will tending to show a different intent, these words import that a distribution is to be made per capita. Boston Safe Deposit Trust Co. v. Doolan, 307 Mass. 233, 29 N.E.2d 844, 847. Allen v. Allen, 13 S.C. 512, at page 531, 36 Am. Rep., 716. The phrases "equally divided" and "share and share alike" are kindred in their nature. Dukes v. Faulk, 37 S.C. 255, 266, 16 S.E., 122, 127, 34 Am. St. Rep., 745.
The use of the word "between," instead of "among," in a direction to divide the subject of a bequest in some cases has been considered some evidence of a stirpital intention. But this is of very doubtful value in arriving at the intention of the testator, for frequently "between" is used when "among" would perhaps be more grammatically correct. This is pointed out by our own case of Rogers v. Morrell, supra.
While the children of J. Allen Smith are not named, they are as clearly ascertainable at the death of the testator as if they were definitely named. In almost every opinion where the rule has been announced, the children were not designated by name.
Neither does the testator's description of the relationship of those who are to take in the residuary clause indicate a division per stirpes. In other portions of the will, where specific bequests are made to nephews and nieces and great-nephews and great-nieces, in almost all instances the testator named his relationship to the legatee. Evidently the testator was using the words "nephew" and "nieces" in the residuary clause merely as description personae.
The circumstance that J. Allen Smith is still living and that the testator saw fit to designate those who were to take by their relationship to their living ancestor would not indicate a stirpital distribution.
In 16 A.L.R., 31, the annotator says: "When a testator designates the object of his bounty by the relationship to the living ancestor, such legatees or devisees have been held to take equal share per capita, on the ground that the fact that the ancestor is living shows that they are not to take in his place, but that he is referred to only to designate the beneficiary."
A number of cases are cited in support of the annotator's statement.
Counsel for the nieces named in the residuary clause also rely on the affection which they say the will shows the testator had for them; the relation of the parties; and the division which would follow a per capita distribution, as indicia of a stirpital intent. It is urged by counsel for Mrs. McMahan and Mrs. Lambeth that a consideration of the whole will definitely indicates a particular affection of the testator for these nieces. I am unable to reach such conclusion from a consideration of the will. It is true that these two nieces are remembered in the disposition of the china and silver and they are, also, given certain personal effects. But certain personal effects are, also, given to Holman Smith, a son of J. Allen Smith, and all of the children of J. Allen Smith are remembered in the distribution of the china and silver. This argument loses its effect when it is observed that certain personal gifts are made to a great-nephew, Clarke Cothran, to a niece, Margaret Holstein, to others not related to the testator and, also, certain monetary bequests are made to a great-nephew, Clarke P. Cothran, and a great-niece, Aimee Cothran, none of whom are remembered by the testator in the disposition of his residuary estate. Nor is the relationship of the parties of any significance. All of these relatives are collaterals of the testator, and not direct descendants. The fact that some of the nephews and nieces are not remembered at all and the fact that some of the great-nephews and great-nieces are specifically remembered, clearly demonstrates that there was no particular affection on the part of the testator for a niece or nephew over a great-niece or great-nephew.
It is, also, urged that if the per capita construction is followed, approximately $63,000.00 will be distributed to the children of Allen Smith as against approximately $9,000.00 to each of the nieces named. This circumstance is of no value in determining the attention of the testator, for it was he alone who was empowered to determine the distribution of his property and the Courts are not concerned with the reasons which prompted him in that disposition.
The Master places some stress on the punctuation used in the residuary clause and this contention is particularly urged by counsel for Mrs. Wofford. Very probably the punctuation in this residuary clause is that of the testator's secretary and not of the testator. Punctuation in case of doubt may sometimes be resorted to to determine the meaning of language used but, as pointed out by the Court in Reynolds v. Reynolds, 65 S.C. 390, 400, 43 S.E., 878, 881: "Punctuation is too uncertain — often a mere matter of taste in the writer — to base a right to alter at will the words used by the testator."
Finally, it is urged that the whole scheme of the will indicates that the testator was "group minded." Counsel for Mrs. Wofford says that the children of J. Allen Smith were placed in one group, Mrs. Wofford in a second, and Mrs. Lambeth and Mrs. McMahan in a third group. It might be here stated that Mrs. McMahan and Mrs. Lambeth are sisters. Mrs. Wofford is a cousin of these two nieces and Mrs. Allen Smith is another cousin. Counsel seeks to attach significance to the fact that Mrs. McMahan and Mrs. Lambeth are named together. I think the group theory is unsound when it is remembered that, in addition to the Smith children, testator left three other "groups," namely: Two children of Wade Cothran, a deceased brother, which two children are not mentioned in the residuary clause; four children of Clarke Cothran, a deceased sister, three of whom are not mentioned in the residuary clause and the fourth, Mrs. Bessie C. Wofford, is named; and two children of J.S. Cothran, Jr., a deceased brother, both of whom, Mrs. Lambeth and Mrs. McMahan, are named in the residuary estate. It should be kept in mind that the testator was, of course, cognizant of the fact that he had four deceased brothers and sisters who left children surviving. He, therefore, must have had in mind when disposing of his residuary estate that there were three branches of his family to be considered in addition to the Smith children. When he thought of Wade Cothran's two children he intended to, and did, exclude them. When he thought of Clarke Cothran's four children, he intended to, and did, select Bessie alone and excluded the remaining three. Thinking of Bessie as a selected individual from the branch of which his sister Clarke was the head, he naturally used the expression "my niece, Bessie Wofford." As to Emma and Sallie who belonged to a different branch, of which his deceased brother, J.S. Cothran, Jr., was the head, he naturally used the expression "my nieces" Emma and Sallie. While he had in mind the branches of his family from whom the named beneficiaries stemmed, he did not select those branches as a class. On the contrary, he selected individuals from those branches and named them, thus showing that he intended them to take not in groups but as individuals. He intended all of the children of J. Allen Smith to take, and instead of naming them he described them by their relation to their father.
The foregoing constitute all the circumstances relied upon by counsel to indicate an intention on the part of the testator for a division per stirpes. It will, therefore, be observed that all of these circumstances are just as consistent with a per capita distribution. We are thus left with no circumstances which could be reasonably said to rebut a presumption of a per capita distribution.
There are a class of cases in South Carolina which do not strictly come under the terms of the per capita rule as hereinabove set out, but which are very analogous in principle. In this line of cases, the word "heirs," is used instead of "children." These cares are very illuminating as showing the clear intent on the part of the Supreme Court in this State to follow the per capita distribution, where there are not clear circumstances to indicate a contrary intent. Among these cases the following may be cited: Allen v. Allen, 13 S.C. 512, 36 Am. Rep., 716; Parrott v. Barrett, 70 S.C. 195, 49 S.E., 563; Dukes v. Faulk, 37 S.C. 255, 16 S.E., 122, 34 Am. St. Rep., 745; Hagan v. Hanks, 80 S.C. 94, 61 S.E., 245, 249.
In the last-cited case, the executor was directed to sell the property and divide the proceeds "share and share alike, between all of my living sisters, or the lawful bodily heirs of any who may not be living."
The Court held that the division should be made between the living sisters and the lawful bodily heirs of the deceased sisters per capita.
Counsel for the nieces rely on the cases of Templeton v. Walker, 3 Rich. Eq., 543, 55 Am. Dec., 646 and Collier v. Collier, 3 Rich Eq., 555, 55 Am. Dec., 653. These two cases should have no application as is pointed out by the Court in the case of Perdrian v. Wells, supra, and as further pointed out by the Court in Allen v. Allen, supra.
It is further urged that the case of Archer v. Munday, 17 S.C. 84, indicates a departure by our Court from the per capita rule. This case is clearly distinguishable. The testator was seeking in that case to remember all of his direct descendants, namely, his two children. It was not a case where collaterals were involved and where the testator was seeking to remember only a comparatively small number of such collaterals. Furthermore, there were other portions of the will which clearly indicated that the testator intended a stirpital distribution. Also, in that case the division had been made and acquiesced in by the parties for a period of thirty years.
The will in controversy was not drawn by a layman. It was drawn by a lawyer of long and successful practice and it is natural to assume that when he used the words contained in the residuary clause, he was fully aware of the legal construction which would be given such words under the decisions of the Supreme Court hereinabove referred to.
If one should disregard the rules of construction herein adverted to and which are so well established, the will in controversy might be susceptible to several constructions. To determine, without the aid of such rules, which construction was intended by the testator would necessitate indulging in the field of speculation, conjecture and surmise. On the contrary, to apply the rules of construction which have been so consistently followed by the Supreme Court of this State and with which it surely must be assumed that the testator was familiar, the will, in my opinion, is only reasonably susceptible to the construction of a per capita distribution among the children of J. Allen Smith and the named nieces.
The children of Mrs. Wofford, Mrs. Lambeth and Mrs. McMahan were not originally made parties to this cause. Since the argument of this case before me and the preparation of the foregoing portion of this decree, at the suggestion of counsel for the executor, these children have been made parties to this cause to determine whether they have any interest in the residuary estate. W.B. McGowan, Esq., has appeared as their guardian ad litem. Any possible interest on the part of these children has been ably represented by Mr. McGowan, whose argument disclosed an exhaustive research of the authorities. It is clear to me that the testator did not intend for such children to take. It would indeed, require a very strained construction to sustain their contention. If such had been the intention of the testator, he would certainly have used more apt words to have evidenced same.
The case of In re Mays' Estate, 197 Mo. App. 555, 196 S.W. 1039, 1040, is very analogous. In that case, the testator directed that certain property "shall be divided equally between the children of Martha V. Brown, John M. Benson and the four children of William J. Mays, Homer, Virginia, John, Violet." It was contended in that case that John M. Benson did not take and that the devise was to the children of Mrs. Brown, the child of John M. Benson, and to the other four children named. The Court held that the devise was to John M. Benson, himself, and that the child of John M. Benson took no interest under the terms of the will. In that case the Court directed a per capita distribution among the children of Martha Brown, John M. Benson and the four children of William J. Mays. The whole devise in this case is remarkably similar to the one in controversy.
Also, see the case of Harris v. Austin, 125 Me., 127, 131 A., 206.
All of the parties named in the residuary clause in controversy were designated in another clause of the will to take in the division of the china. In that clause, they were named in somewhat the inverse order, the children of J. Allen Smith being named last. This is rather persuasive that the testator was not undertaking to substitute the children of Mrs. Wofford, Mrs. Lambeth and Mrs. McMahan in their stead.
It is, therefore, ordered: That the exceptions by the children of Allen Smith to the report of the Master be, and they are hereby, sustained.
Further ordered: That the children of Mrs. Wofford, Mrs. Lambeth and Mrs. McMahan take no interest under the residuary clause.
Further ordered: That the executor is directed in the distribution of the residuary estate to divide same, after payment of proper costs and disbursements, into ten parts, and distribute one-tenth, each, to the seven children of J. Allen Smith, one-tenth to Mrs. Wofford and one-tenth, each to Mrs. McMahan and Mrs. Lambeth.
Mr. W.B. McGowan, of Greenville, for appellants Bryan Wofford, John Wofford, Ellen McMahan, Sally McMahan, Thomas McMahan, Charles Lambeth and Sally Lambeth, cites: As to contribution: Gardner On Wills (2d Ed., Horn-book Series), 403; 56 So., 952 (Ala.); 248 N.Y.S., 450; (Tenn.) 1 Head, 411; (Va.) 10 Grat., 275; (N.Y.) IX Paige Chancery, 81; 55 N.C. 215-217; 91 N.C. 204, 212; (Ala.) 30 So., 481; 31 S.C. Eq. (10 Rich.), 1. Cases distinguished: (Mo.) 196 S.W. 1039; (Me.). 131 Atl., 206; 5 Rich. Eq., 555.
Messrs. Perrin Tinsley, of Spartanburg, for appellant Bessie C. Wofford, cite: As to construction: 28 R.C.L., 211; 26 S.C. 450; 2 S.E., 475; 165 S.C. 266; 163 S.E., 784; 10 S.C. Eq. (1 Hill), 311; 28 S.C. Eq. (7 Rich. Eq.), 125, 132; 82 S.C. 402; 64 S.E., 143; 161 S.E., 608 (Ga.); 75 A.L.R., 774; 33 Conn., 222; 211 Iowa, 117; 233 N.W., 41; 78 A.L.R., 1375; 350 Ill., 23; 182 N.E., 799; 94 A.L.R., 1; 104 S.E., 177 (N.C.); 30 Am. Eng. Enc. Law, 669; 116 Ga. 259; 42 S.E., 486; 36 S.C. 38; 15 S.E., 278; 17 S.C. 84.
Mr. Hoke B. Black, of Greenville, for appellants Emma C. McMahan and Sallie C. Lambeth, cites: As to intention of testator: 11 S.C. Eq. (2 Hill), 41; 177 Wis. 104; 188 N.W., 78; 49 Harv. L. Rev., 903; 179 N.W., 769 (Wis.); 1 Sumn., 235, 239; 16 A.L.R., 9 (Ill.); 254 N.Y.S., 789; 268 N.Y.S., 465; 41 P.2d 237 (Col.); 126 A., 343 (Me.); 49 Harv. L. Rev., 917; 36 S.C. 43; 165 S.C. 266; 163 S.E., 784; 45 Conn., 467; 29 Am. Rep., 688. As to per capita rule: 1 Hill's Eq. (10 S.C. Eq.), 311; Rice's Eq., 10 (14 S.C. Eq.); 11 S.C. Eq., 41 (2 Hill Eq.); 5 Rich. Eq., 20 (26 S.C. Eq.); 174 Atl., 639 (Pa.); 34 L.R.A., (N.S.), 945 (N.Y.); 183 N.E., 51; 131 S.C. 232; 126 S.E., 521; 1 Hill's Eq. 152 (10 S.C. Eq.); 10 Rich. Eq., 1 (31 S.C. Eq.); 28 S.C. Eq., 125 (7 Rich.); 12 S.C. 573; 82 S.C. 402; 64 S.E., 143. "Equally divided": 10 S.C. Eq., 152 (1 Hill); 2 Hill's Eq., 430 (11 S.C. Eq.); 3 Rich. Eq., 543; 24 S.C. Eq., 555 (3 Rich. Eq.); 13 S.C. 513; 4 Rich. Eq., 340 (25 S.C. Eq.); 5 Rich. Eq., 509 (26 S.C. Eq.); 28 S.C. Eq., 125 (7 Rich. Eq.); 17 S.C. 84; 36 S.C. 38; 15 S.E., 278; 56 Ind. App. 301; 103 N.E. 679; 126 Iowa 511; 102 N.W. 433; 104 Me. 333; 71 A. 933; 117 Me. 10; 102 A. 307; 62 N.C. 83; 9 Ohio App. 300; 100 Ohio St. 447; 126 N.E. 886; 42 W. Va. 402; 26 S.E. 193; 84 W. Va. 393; 99 S.E. 512; 82 Mass. 102; 163 Mass. 247; 39 N.E. 1016; 2 Stew. 24 (Ala.); 201 Iowa, 784; 208 N.W., 369; 187 Ky., 709; 220 S.W. 532; 96 Mass. 204; 6 N.J.L., 111; 16 R.C.L., 208; 14 Atl., 850; 192 N.E., 328; 16 A.L.R., 8; 116 Ga. 259; 42 S.E., 486; 59 A.L.R., 125; 33 Conn., 222; 50 Ky., 32; 93 S.W.2d (Ky.); 233 N.W., 41; 78 A.L.R., 1375 (Iowa); 182 N.E., 799; 96 Mass. 204; 144 A., 63 (N.H.); Page On Wills, 1901 Ed., p. 544; 75 A.L.R., 831; No. 210; 16 A.L.R., 24-25. As to the "faint glimpse doctrine": 28 S.C. Eq., 125 (7 Rich. Eq.); 9 Rich. Eq., 459 (30 S.C. Eq.); 36 S.C. 38; 15 S.E., 278; 2 Jarman On Wills, Bigelow's 6th Am. Ed., 205, 206; 70 Mich., 179; 38 N.W., 20; 103 N.E., 679 (Ind.); 45 Conn., 467; 186 S.E., 25 (Va.); 198 S.E., 474 (Va.); 126 A., 343 (Me.); 16 A.L.R., 84. As to difference between class gifts and individual gifts: 49 Harv. L. Rev., 927; A.L.R., 792; 233 N.W., 41 (Iowa), 78 A.L.R., 1375; 85 S.C. 319; 67 S.E., 556; Schouler On Wills, 6th. Ed., par. 1012; 75 A.L.R., 789, 792, 793; 75 A.L.R., 873; 2144 Pa., 335; 63 Atl., 884; 82 S.C. 402; 64 S.E., 143; 109 S.C. 477; 96 S.E., 608; 174 N.Y.S., 172; 116 N.Y.S., 756; 213 N.W., 392; 165 N.E., 489 (Mass.); 186 N.E., 64 (Mass.); 261 N.Y.S., 787; 34 L.R.A. (N.S.), 945 (N.Y.); 130 N.E., 705 (Ill.); 133 Conn., 222; 50 Ky., 32; 96 Mass. (14 Allen), 204; 81 N. Y., 281; 9 Mackey, 537; 2 Cox, 190 (Ch. 1789); Kale's Future Interests, par. 556; 180 N.W., 364 (Mich.); 254 N YS., 799; 164 N.E., 460 (Mass.); 55 S.W. 1021 (Mo.); 68 S.W. 631 (Ky.). Jarman's definition of a class: 254 N.Y.S., 800-801; 12 S.C. 573; 133 N.Y., 456; 31 N.E., 332, 333; 23 S.C. 216. The "exclusion process": 180 N.W., 364 (Mich.); 39 Conn., 186; 109 S.C. 477, 512; 96 S.E., 608, 611; 25 Atl., 354. As to class reference in will: 85 S.C. 319; 67 S.E., 556; 186 S.E., 25 (Va.); 198 S.E., 474 (Va.); 68 S.W. 631 (Ky.); 56 N.C. 205 (3 Jones Eq.); 20 S.W. 1024; 75 A.L.R., 821. As to per capita rule applied to collaterals: 49 Harv. L. Rev., 908; 9 Rich. Eq., 459 (30 S.C. Eq.); 28 S.C. Eq., 125 (7 Rich. Eq.); 50 Ky., 32; 96 Mass. 204; 192 N.E., 327 (Ind.); 93 S.W.2d 15 (Ky.); 178 Atl., 15 (Pa.); 55 S.W., 1021 (Mo.). As to relationship of the parties: 192 N.E., 327 (Ind.); 26 N.E., 58 (Ind.); 11 B. Mon., 32 (Ky.); 233 N.W., 41 (Iowa); 182 N.E., 799 (Ill.); 55 S.W., 1021 (Mo.); 178 Atl., 15 (Pa.); 69 C.J., 99-100; 17 S.C. 84; 9 Mackey, 537 (D.C.); 70 Mich., 179; 38 N.W., 20; 12 S.E.2d 533 (W.Va.); 20 N.E., 519 (Ind.); 220 S.W. 532 (Ky.); 186 S.E., 25 (Va.); 42 S.E., 486 (Ga.). As to use of word "between": 82 S.C. 402; 64 S.E., 143; 10 S.W.2d 53 (Mo.); 75 Ore., 549; 147 Pac., 753; 38 R.I. 395; 95 A., 857; 265 Pa., 175; 108 A., 595; 248 Pa., 90; 93 A., 824; 299 Ill., 263; 132 N.E., 567; 94 N.J. Eq., 606; 120 A., 653; 30 So., 481 (Ala.); 29 A., 750 (Pa.); 41 A., 576 (R.I.); 16 A.L.R., 26; 10 A., 517 (Conn.); 102 A., 307 (Me.). As to inequality: 16 A.L.R., 12; 55 S.W. 1021 (Mo.); 149 Atl., 515 (Conn.); 78 A.L.R., 1389; 233 N.W., 41 (Iowa).
Messrs. Blythe Bonham, of Greenville, for respondents Grace Smith Harrison, Anne Smith Cook, Rebecca Smith, Holman Smith, Blanding Smith Guignard, Hettie Smith and Meta Smith, cite: As to construction: 28 S.C. Eq. (7 Rich. Eq.), 125; 10 S.C. Eq. (1 Hill), 311; 11 S.C. Eq. (2 Hill), 41; 26 S.C. Eq., 20 (5 Rich.); 31 S.C. Eq. (10 Rich.), 1; 80 S.C. 94; 61 S.E., 245; 82 S.C. 402; 64 S.E., 143; 12 S.C. 573; 28 R.C.L., 267; 69 C.J., 296; 17 S.C. 84; 9 Rich. Eq., 459; 180 S.C. 540, 551; 109 S.C. 477, 512; 96 S.E., 608.
Mr. Black, in reply brief, cites: 165 S.C. 266; 163 S.E., 784; 36 S.C. 38; 15 S.E., 278; 4 Strob., 1 (23 S.C. Eq.).
December 15, 1941. The opinion of the Court was delivered by
This Court is in agreement with the reasoning and conclusions of the excellent decree of his Honor, Judge Oxner, which sufficiently states the facts and contentions in this case. The able and earnest arguments of appellants' counsel have been carefully considered, as have the exceptions, which latter are, however overruled. The judgment below will be reported as the judgment of this Court.
Affirmed.
MESSRS. ASSOCIATE JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE G. DUNCAN BELLINGER concur.
MR. CHIEF JUSTICE BONHAM did not participate.