Opinion
14408
January 6, 1937.
Before SEASE, J., Spartanburg, July, 1936. Affirmed.
Action by Preston S. Daniel and others against A.E. Perry and others. Judgment for plaintiffs, and defendants appeal.
Decree of Judge Sease is as follows:
This action comes before me upon the report of the Master, dated April 27, 1936, and exceptions of defendant thereto. These exceptions were fully presented and argued before me on July 18, 1936.
The action involves the construction of the will of R.J. Daniel, deceased, copy of which is annexed to the complaint. An examination of this will reveals the fact that it naturally falls into two divisions. The first division relates to property devised to his wife. All of this lies in North Carolina, where the testator was residing at the time of his death. The second division relates to certain property devised to his two children, the plaintiff Preston S. Daniel and Anabel Ruff, all apparently lying in the city of Spartanburg, where testator formerly resided. With the property embraced in the first division of the will we have nothing to do in this action. Testator's widow has executed to the plaintiffs Preston S. Daniel and Anabel Ruff a deed which conveys all of her interest in the Spartanburg property, including the particular lots involved in this action
We may dismiss from consideration, therefore, the first portion of the will. The second portion begins with the words "and to my son Preston S. Daniel and my daughter Anabel Ruff." Testator then proceeds to give or attempt to give his two children, "and their children and offspring," a certain piece of property which he had in mind, the plaintiff Idella Daniel, who is the wife of the plaintiff Preston S. Daniel, also to enjoy the rents therefrom for her life should her husband predecease her. This property, whatever it is and wherever situated, testator directed should not be sold. He says plainly, it is "not to be sold, but the insurance and taxes to be kept paid up from the rents." Then follows the clause quoted by the Master in his report, as follows: "I also give to my son, Preston S. Daniel, the lot, a part of my old homestead lot on South Church Street, next and south of Mrs. Crigler, the other houses on South Liberty Street, and they can sell if they like or wish to do so," etc. The last property mentioned, the other houses on South Liberty Street, are the ones involved in this action.
In endeavoring to reach the true meaning of the will, I am impressed with the word "also," which occurs many times and in each instance refers to a different piece or different pieces of property. Testator does not say, "I also give to my son and my daughter the property I own in Spartanburg to be held by them as I have directed, for the benefit of themselves, their children, and offspring, and not to be disposed of." On the contrary, he says they need not hold it, but that they can sell it if they like or wish to do so. The Master is correct in holding that this power of sale is unqualified. He is right, also, in holding that the pronoun "they" can refer only to testator's son, Preston S. Daniel, and his daughter, Anabel Ruff. This is the only reasonable construction. To assume that the testator meant by "they" to embrace offspring unborn would be doing violence to the primary rule of construction of all wills which requires the Court to ascertain and give force and effect to the intention of the testator as gathered from the entire instrument itself. This disposes of all exceptions to the Master's report relating to the proper construction of the will.
Another exception relates to costs. It seems to me that there is some merit in this exception. The will is an involved instrument. It was proper to ask the Court to construe it. And I think, therefore, that the costs involved should be taxed by the clerk of Court and divided one-half to be paid by the plaintiffs and the other by the defendant Perry.
As to the matter of amending the pleadings so as to refer to the defendants as representing certain classes of heirs or devisees, it seems to me that this is unnecessary. It does appear that there are three distinct classes of devisees mentioned in the will that are represented by the parties to this action. The plaintiffs, Preston S. Daniel and Anabel Ruff, are testator's children; the defendants Adelaide McCarty and Fielding Arnold Ruff are testator's grandchildren; and the defendant Sarah Ann McCarty is testator's great grandchild. These parties not only represent the three classes named but comprise all the persons in existence at this time belonging to these several classes. They have all been properly served and are before the Court. The Master has found that the grandchildren and the great-grandchild have no interest in the property involved herein, and in this finding I concur. But if by any other construction of the will, they can be found to be entitled to an interest, they would be estopped ever to claim any such interest.
The Master's report contemplates payment of the full purchase price to him. This is not necessary. Two hundred dollars should be paid to the Master to be held until the Court has decided which real estate broker is entitled to the commissions claimed. When this question has been settled, the balance remaining in the Master's hand of this $200.00 so held should be paid to the plaintiffs or their attorney of record.
It is therefore ordered, adjudged, and decreed that the report of the Master be confirmed as herein modified and that the defendant Perry be required to pay the balance of said purchase price with interest, as follows: $200.00 thereof to the Master to be held as above directed, and the remainder of said purchase price to the plaintiffs, Preston S. Daniel and Anabel Ruff, to be divided between them as the will directs, or to their attorney of record herein — the costs to be decided as hereinabove directed.
Messrs. Perrin Tinsley, for appellants, cite: Future-born children should be made parties individually and as representatives of a class: 76 S.C. 156; 56 S.E., 677; 80 S.C. 80; 61 S.E., 218; 84 S.C. 29; 65 S.E., 953.
Mr. Horace L. Bomar, for respondents, cites: Power of sale under will: 68 S.C. 335. Costs: Sec. 756, Code 1932; 24 S.C. 487; 84 S.C. 461; 44 S.C. 383; 74 S.C. 281; 81 S.C. 315; 82 S.C. 117.
January 6, 1937. The opinion of the Court was delivered by
Action by plaintiffs-respondents against defendants-appellants asking for specific performance of a contract of sale of certain real estate situate in the city and county of Spartanburg, this State. It involves the construction of the will of R.J. Daniel, deceased. Appellants desire to comply with the contract of sale and purchase if they can be given good title in fee simple.
The decree of Honorable T.S. Sease, Circuit Judge, which will be reported, is satisfactory to this Court. However, for a better understanding of this decree, we set out in full the clauses of the will in question: "And to my son, P.S. Daniel, and my daughter Anabel Ruff, now of Atlanta, Ga., and their children and offspring, and if my son, Preston S. Daniel, should die, then his widow, M. Idella Daniel, shall have the proceeds or rents during her natural life or until she marries, and should she, Della, marry, then my daughter, Anabel and her children to have it, and not to be sold but the insurance and taxes to be kept paid up from the rents. I also give to my son, Preston S. Daniel, the lot a part of my old homestead lot on South Church Street, next and south of Mrs. Crigler; the other houses on South Liberty Street, and they can sell if they like or wish to do so, and divide the money, giving Preston S. Daniel two-thirds of the money."
On the incidental question of who should pay the costs, and supplementary to the decree of Judge Sease, the following excerpt from the brief of respondents, is directly in point: "The rule in our State that costs in equity cases are within the discretion of the Court is settled beyond dispute. In Webb v. Chisolm, 24 S.C. 487, which was an action for specific performance to purchase a city lot, just like the case now on appeal, it was held that the Circuit Judge had discretion to direct each party to pay his own costs. In Matheson v. Rogers, 84 S.C. 458, 461, 65 S.E., 1054, 67 S.E., 476, 19 Ann. Cas., 1066, the Court said: `Except in a clear case of abuse of discretion, or the violation of some rule of law, this Court will not interfere with a decree fixing liability as to costs in an equity cause. Brown v. Brown, 44 S.C. 378, 383, 22 S.E., 412; Williams v. Jones, 74 S.C. 258, 281, 54 S.E., 588; Cauthen v. Cauthen 81 S.C. 313, 315, 62 S.E., 319; Anderson v. Silcox, 82 S.C. 109, 117, 63 S.E., 128.'"
Exceptions overruled and judgment affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BONHAM and FISHBURNE concur.