Opinion
14510
July 8, 1937.
Before GRIMBALL, J., June, 1936, and MANN, J., January, 1937, Charleston. Affirmed.
Proceeding in the matter of Selina E. Magrath, as executrix of William J. Magrath, and individually, against Maria Gordon Magrath and Emily Magrath, wherein Maria Gordon Magrath and Emily Magrath filed an ex parte petition, and the Carolina Savings Bank and Alexander Marshall, as administrator d. b. n. c. t. a. of the estate of William J. Magrath, were joined as parties defendant. From an adverse order and from a decree affirming the Master's report in favor of the petitioners Alexander Marshall as administrator d. b. n. c. t. a. appeals.
The Master's report follows:
This cause was by order of the Honorable William H. Grimball, Judge of the Ninth Circuit, dated June 29, 1936, referred to the undersigned Master for Charleston County to take the testimony and to hear and determine all of the issues of fact and of law therein, and to report his findings of fact and conclusions of law to this Court, with leave to report any special matter. I have held a reference, the minutes of which, including a transcript of the testimony taken, and certain exhibits, are hereto attached. The issues before me involve the construction, of the will of William J. Magrath and the present disposition of the remaining assets of his estate in conformity with such construction.
I find the following as matters of fact:
William J. Magrath, late of Charleston County, died on May 8, 1902, leaving of force his last will and testament dated May 25, 1886, which was thereafter duly admitted to probate in the Probate Court for Charleston County. The testator left surviving him, as his nearest of kin, his widow, Selina E. Magrath, and their two daughters, Maria Gordon Magrath and Emily Magrath, petitioners herein, who were and are his only children.
By the terms of his will, the testator devised and bequeathed to his wife, Selina E. Magrath, in bar of dower and any other claim upon his estate, the sum of $10,000.00, and confirmed in her the title to the residence on Lynch Street (now Ashley Avenue), in the City of Charleston which he had previously caused to be made in her name. He then proceeded to dispose of the rest and residue of his estate as follows:
"Item: The rest and residue of my estate, I hereby direct and so devise and bequeath shall be kept together; the income, issue and profit thereof to be received and taken by my said wife, for the support and maintenance of my wife and children, during such time as my wife shall remain a widow and unmarried. But in case she shall marry again, then from and after that event such income, issue and profit of my estate, shall be exclusively applied for the support, maintenance and education of my children — until such time as either shall attain the age of twenty-one years. On the happening of that event, if both are then surviving, the share of each shall be ascertained by an equal division of my estate — and the share of the one having reached the said age, shall be conveyed in strict settlement on her for life; and in case of marriage, free from all debts and contracts of any husband she may marry; with remainder to any child or children the issue of such marriage she may leave surviving her. But in case such child or mine, shall die before reaching the said age of twenty-one years; or having reached that age shall not marry; or, having married, shall die leaving no child or children surviving her; then the share of my estate so ascertained for her, shall revert and become part of my estate — and become vested in my surviving child; subject to the limitations and conditions as are herein declared concerning the share of my estate to be taken by such surviving child.
"Item: When the younger of my children shall arrive at the age of twenty-one years, the share of my estate to which she is entitled, and corresponding in value to that given to my other child, her sister, shall be held and taken by her subject to the same limitations and conditions, hereinbefore expressed and declared, of and concerning the share of my estate set apart and given to her sister. And such trusts, limitations and conditions shall be alike applicable to the share of either which may come to the other by death or any other contingency. It being my intention and that intention being a condition affecting the shares of my children; That on the happening of any contingency because of which the share of either may fall in, for the benefit of the other; The same shall be held and taken subject to the same limitations and conditions as were declared of and concerning the same, as hereinbefore set forth.
"Item: In the event of the death of both of my said children leaving no child or children surviving either, I will and direct that from the income, issue and profit of my estate, my wife during her widowhood and as long as she shall continue unmarried, shall be entitled to receive the sum of Three Thousand Dollars annually — the same shall be a charge on my estate, and made secure to her, for and during her widowhood, and as long as she shall continue unmarried. And subject to such charge, I give, devise and bequeath my estate to my next of kin, to be divided between them, according to the law of this State relating to the distribution of an estate, among the next of kin."
The remaining items of the will, which do not involve the issues immediately under consideration, but which occasioned the proceedings next referred to, are as follows:
"Item: As my only surviving brother has expressed the wish not to be an Executor of this will and testament — while willing to do all he can to advise and direct my wife and my children in all matters that affect their temporal welfare, I hereby designate him, A.G. Magrath, as the testamentary guardian of my children, and each of them — and now impose on him the obligation to see, that my purpose and intention in this will and testament are carried out and executed. And I do specially enjoin it upon my wife and children in all matters of my estate to be guided by his advice and to seek his direction in all that relates to their personal welfare.
"Item: It is my earnest wish and desire, and I do now so expressly direct, that my estate, real and personal, shall be kept together — and no sale or division thereof, shall be made, except in the contingencies and for the purposes hereinbefore expressed. And that in every and in all cases, no change shall be made in the estate of which I may die seized or possessed unless and until application is made to the Probate Court, specifying the circumstances under which such application is made with a statement of what change is required or desired, and filing a statement of such particular part of my estate as that in which any change is desired or required, and in what the change is to be made.
"Lastly: For the purpose of enabling my wife during the minority of each of my children, and during her widowhood, in case she shall not marry again, to receive and apply the rents, issues and profits of my estate for the maintenance and support of my wife and children and for the education of my children, I nominate and appoint my wife, Selina E. Magrath, while she remains a widow and unmarried, executrix of this my last will and testament. And if she shall not remain a widow and unmarried, then upon her ceasing to be a widow and marrying again, I revoke the said nomination and appointment."
In December, 1904, Selina E. Magrath filed in this Court her bill of complaint against Maria Gordon Magrath (therein referred to as Mary G. Magrath), and Emily Magrath, seeking authority to sell a certain piece of land belonging to the estate, and praying that the will of William J. Magrath be construed in certain particulars there indicated. In that complaint it is alleged that the plaintiff and her two daughters, the defendants, are in doubt:
(a) Whether any part of the estate not devised or bequeathed to Selina E. Magrath is to be conveyed in strict settlement to either of the defendants, inasmuch as both of them have reached the age of twenty-one years, and Selina E. Magrath has never remarried; or whether the estate, other than that portion bequeathed to Selina E. Magrath, is to be kept together, and the income, issues, and profits thereof to be received and taken by Selina E. Magrath for the support of herself and her said two children during the whole period of her widowhood, until she may marry again or so long as she may remain unmarried;
(b) Whether the devise over to the testator's next of kin is to take effect upon the death of either of said children leaving no child or children surviving them after the death of the testator, or only in the event of their death or the death of either of them leaving no child or children surviving them respectively, before the death of the testator;
(c) Whether the provision in the will, to the effect that in every and all cases no change should be made in the estate unless and until application be made to the Probate Court, is intended to apply only to the case of the death of the testator leaving his daughters, the defendants, minors, or whether it is intended to apply indefinitely to the period after the death of the testator, so long as his widow shall remain unmarried, even though his daughters, the defendants, are over the age of twenty-one years and had arrived at that age before the death of the testator.
(d) How to sell any of the real estate belonging to the estate of the testator, there being no provision in the will for such sale, other than the provision with regard to application to the Probate Court above referred to.
In that proceeding, G.H. Sass, Esq., Master, filed his report dated April 15, 1905, recommending the following:
(a) That the will should be properly construed to mean that the administration of the estate by the testator's widow should extend only during the minority of the children.
(b) That the provisions with regard to application to the Probate Court before making any change in the estate, applied only to the period of the children's minority.
(c) That a division of the estate between the two daughters be made, and the share of each be conveyed to Selina E. Magrath as trustee.
This report was confirmed by formal order of the Honorable R.W. Memminger, Circuit Judge, filed April 19, 1905.
Thereafter under date May 8, 1905, G.H. Sass, Master, executed and delivered to Selina E. Magrath, as trustee, two deeds, identical in form, one conveying to the said trustee one-half of the assets of the estate in trust primarily for Maria Gordon Magrath, and the other conveying the other half of said assets in trust primarily for Emily Magrath. These deeds were duly recorded in the R.M.C. office for Charleston County in Book F-24, pages 474 and 471, respectively. The trusts expressed in the first-mentioned deed are as follows:
"In trust nevertheless to and for the following uses trust and purposes that is to say In Trust to hold the same and to pay over the rents income issues and profits thereof unto the said Mary Gordon Magrath during her life and in case of her marriage free from all debts and contracts of any husband she may marry and after her death In Trust to convey transfer to pay over and deliver the whole of the trust estate herein conveyed to any child or children the issue of such marriage whom she the said Mary Gordon Magrath may leave surviving her their heirs, executors administrators and assigns forever freed and discharged of and from any further trust or trusts. But in case said Mary Gordon Magrath shall not marry or having married shall die leaving no child or children surviving her then the whole of the said trust estate herein conveyed shall become vested in said Emily Magrath for her life should the said Emily Magrath survive the said Mary Gordon Magrath and in case of the marriage of said Emily Magrath free from all debts and contracts of any husband she may marry and after the death of said Emily Magrath In Trust to convey transfer pay over and deliver the whole of the said trust estate herein conveyed to any child or children the issue of her marriage whom she may leave surviving her their heirs executors administrators and assigns forever freed and discharged of and from any further trust or trusts but in case the said Emily Magrath shall have departed this life before the death of said Mary Gordon Magrath leaving a child or children surviving her the said Emily Magrath then in trust to convey transfer pay over and deliver the whole of the said trust estate herein conveyed to such child or children their heirs executors administrators and assigns forever freed and discharged of any further trust or trusts BUT IN the event of the death of both of them the said Mary Gordon Magrath and Emily Magrath leaving no child or children surviving either then in Trust to pay over from the income issue and profit of the said trust estate to the said Selina E. Magrath during her widowhood and as long as she shall continue unmarried the sum of Three Thousand ($3,000.00) Dollars annually the same to be a charge on the said estate so that the sum of Three Thousand Dollars annually shall be paid to her from the whole of the income of the estate devised and bequeathed in my said will to my two said daughters and to be made secure to said Selina E. Magrath for and during her widowhood and so long as she shall continue unmarried. And from and after the death or marriage of said Selina E. Magrath then in Trust to convey and deliver the said trust estate herein conveyed to the next of kin of the said William J. Magrath to be divided between them according to the law of this State relating to the distribution of an estate among next of kin to them their heirs executors administrators and assigns forever free and discharged of or from any further trust or trusts."
The expression of the trusts in the other deed is identical, mutato nomine.
Selina E. Magrath continued to manage the estate under these trusts, until her death on September 10, 1934, and thereafter by decree in the cause dated July 13, 1935, Carolina Savings Bank was substituted in her stead as such trustee. By her will, Selina E. Magrath devised and bequeathed all of her property and estate to her two daughters, the petitioners Maria Gordon Magrath and Emily Magrath.
Under date May 29, 1936, Alexander Marshall was appointed by the Probate Court for Charleston County as administrator d. b. n. c. t. a. of the estate of William J. Magrath, and duly qualified.
Carolina Savings Bank has filed in the cause its resignation as trustee under each of the trust instruments above mentioned, and is ready and willing to account and transfer the assets upon proper order of this Court.
Maria Gordon Magrath and Emily Magrath have filed in the cause their petition, alleging in substance that under the only proper construction of the will of their father, the remainder in fee in his residuary estate is presently vested in them and the survivor of them, subject to be divested only in the event of the death of either of them leaving issue surviving, and praying that the resigning trustee, Carolina Savings Bank, be directed to deliver the said assets to them.
By proper order in the cause, Carolina Savings Bank and Alexander Marshall as administrator d. b. n. c. t. a. of the estate of William J. Magrath have been joined as parties, and each has filed an answer to the petition.
The answer of Carolina Savings Bank is formal, and prays the instructions of this Court and permission to file its accounts and be relieved from further responsibility.
The answer of Alexander Marshall as administrator d. b. n. c. t. a. of the estate of William J. Magrath puts in issue the construction of the will of William J. Magrath so far as concerns the ultimate disposition of the estate, and contends in substance that the remainder in the estate, upon the death of both petitioners without issue, is vested or will be vested under the will in such persons then in esse as will then constitute the next of kin of the testator. Pursuing the same contention this answer sets out that there are nine grandnieces and grandnephews of William J. Magrath now living, who will constitute the next of kin of the testator upon the death of the survivor of the petitioners, and prays that they be brought into the cause as necessary parties to the determination of the issues involved.
The question of the joinder of these additional parties was argued before the Honorable William H. Grimball, Circuit Judge, who on June 25, 1936, filed his order holding that under our decisions these grandnieces and grandnephews had no possible interest under the will, and that they were therefore neither necessary nor proper parties, and accordingly refusing to order them joined.
Coming now to the issues of law presented under the pleadings and the evidence, there should first be considered the question of the effect, if any, of the previous proceedings in this cause upon the rights of the petitioners in the present proceedings. The original proceedings in 1904 and 1905 were for the purpose of obtaining the instructions of the Court on four questions alone, namely:
(1) Whether the will meant that the estate should not be divided between the two daughters of the testator until the widow should remarry, or whether the division was intended to be made upon the daughters attaining their majority respectively;
(2) Whether the devise over to the testator's next of kin was intended to take effect upon the death of either child without issue surviving after the testator's death, or only in the event of the death of either child without issue surviving before the testator's death.
(3) Whether the restriction upon changes in the estate was intended to continue during the widowhood of Mrs. Magrath, or only during the minority of the children.
(4) How to effect a sale of real estate belonging to the estate.
The question of law presented in the present proceedings, namely, whether the words "my next of kin," as used in the will, mean the next of kin at the time of the testator's death, or those persons who may be the nearest of kin to the testator at the time of the death of the surviving daughter, was not before the Court in the previous proceedings, and was not considered.
It is clear, therefore, that none of the previous proceedings in the cause preclude or estop the petitioners from raising the issue presented in the matter now under consideration.
Nor are they so estopped or precluded by the fact that in the previous proceedings the assets of the estate were conveyed to a trustee. As I have pointed out, there was no devise to a trustee, nor was there anything in the will requiring or directing that the estate be handled through a trustee. It is obvious that the conveyance to the trustee was merely for convenience in the handling of the estate, and particularly so in view of the provision in the will for the support of the testator's widow. The trustee having now resigned and asked to be discharged, and it appearing that the shrinkage of income has reached the point where to appoint a new trustee would no longer facilitate the handling of the estate, but would, by reason of the expenses of such administration, seriously impair the income to the petitioners, the estate should now be turned over to the petitioners in the absence of cogent reasons to the contrary.
As to the construction of the will, I am satisfied that the words "my next of kin," as used in the will of the testator, should be construed to mean those persons who under the statute of distribution constituted his next of kin at the time of his death, namely, his widow, Selina E. Magrath, and his two children, Maria Gordon Magrath and Emily Magrath, petitioners in this cause.
In Rochell v. Tompkins, 1 Strob. Eq., 114, the testator's will devised and bequeathed certain property to his wife for and during the term of her natural life, and at her death to return to and become a part of his estate. It was contended, in a suit for an account and distribution after the wife's death, that her right in the reversion was incompatible with the life estate, and that upon her death the estate was distributable among the testator's next of kin to the exclusion of her relatives. But the Court, holding that there was an intestacy, declared that the wife's right in the reversion was not incompatible with her life estate, and that as the reversion vested in the next of kin of the testator at the time of his death, she took her interest therein.
In Glover v. Adams, 11 Rich. Eq., 264, property was conveyed under a marriage settlement to a trustee for the joint use of the husband and wife during coverture, and if the husband should survive the wife, then to his use for life, with remainder to "the legal heirs and representatives" of the wife. The husband survived and it was held that the persons entitled to the remainder were the heirs and distributees of the wife, including the husband, at her death.
In Boyce v. Mosely, 102 S.C. 361, 86 S.E., 771, the Court had under consideration a deed, the habendum of which was "to Angelina ( who was the only child and heir of the grantor), and Thos. G. Bacon ( her husband), during the terms of their natural lives, or the lives of either of them, and afterwards to revert back to my estate and be distributable amongst my next of kin." (Italics added.) It was held that the grant of the remainder not containing the words prescribed by law to convey a fee, the remainderman under the deed took only a life estate, but that that remainderman was Angelina, who was the testator's next of kin at the time of his death; that the fee descended by operation of the law to Angelina, as the testator's sole heir, and passed under her will.
In the leading case of McFadden v. McFadden, 107 S.C. 101, 91 S.E., 986, the rule is declared to be settled that when there is a devise to "heirs" as a class, they take at the death of the testator, unless a different time is fixed by the word "surviving," or some other equivalent expression.
With the single exception of the case of Bartell v. Edwards, 113 S.C. 217, 102 S.E., 210, to which I shall refer hereafter, the later decisions of our Supreme Court have reiterated and followed the principle declared in the McFadden case.
In Avinger v. Avinger, 116 S.C. 125, 107 S.E., 26, the testator had devised and bequeathed the residue of his estate as follows: "To my beloved wife, the land and appurtenances situated thereon, during the term of her natural life, and after her death to be divided equally among my heirs; or, in case my wife ceases to be a widow and marries again, then at her marriage, to be equally divided among my heirs then living, share and share alike."
It appeared that the testator had died in 1889. He had been married four times, and left a widow, who died in 1919, having never remarried. The testator's first, second and fourth wives had children, but the third wife did not.
The Circuit Court held that the remainders created by the will were contingent; that they did not become vested until the death of the widow; and that the heirs of the testator living at the time of her death were entitled to the property. But the judgment was reversed on appeal, the Supreme Court saying:
"The well-recognized rule is that when there is a devise to `heirs' as a class, they take at the death of the testator, unless a different time is fixed by the word `surviving,' or some other equivalent expression. McFadden v. McFadden, 107 S.C. 101, 91 S.E., 986.
"The only other provision in the will upon which his Honor, the Circuit Judge, relied was that, in case his wife ceased to be a widow and married again, then, at her marriage, the land was to be equally divided among his heirs then living, share and share alike. The remainders in this provision were alternative, or substitutional, and therefore contingent. In order for these remainders to become effective it was essential for the widow to marry again, which contingency did not happen. As there is no other provision of the will preventing the application of the well-recognized rule already mentioned, it necessarily follows that the heirs of the testator, living at the time of his death, took vested remainders, which were not thereafter divested."
In the case of Clardy v. Clardy, 122 S.C. 451, 115 S.E., 603, the will under consideration devised and bequeathed all of the testator's property to a trustee, in trust to keep and manage the same for the testator's daughter "for her benefit and to the heirs of my body, she having the possession and control of the property during her life."
In the very able decree of the Circuit Judge, which was affirmed by the Supreme Court, the authorities were fully reviewed, and it was held that the daughter took, in addition to the life estate, a vested remainder in fee.
The rule has been likewise applied in cases where the testator has given a life estate to one who fell within the class of next of kin under the statute, and where there was an intestacy as to the remainder, and our Courts have uniformly held (with the exception of the case of Bartell v. Edwards), that the life tenant was not precluded from taking the remainder in fee by reason of the life estate previously limited. Busby v. Busby, 142 S.C. 395, 140 S.E., 801; National Union Bank v. McNeal, 148 S.C. 30, 145 S.E., 549; Manigault v. Bryan, 154 S.C. 78, 151 S.E., 199.
The case of Bartell v. Edwards, 113 S.C. 217, 102 S.E., 210, 211, involved the construction of a deed and a so-called will, both executed on the same day. By the deed, the wife conveyed certain property to her husband in fee. By the so-called will, the husband, William Edwards, devised this property to his wife for life "and it is the condition of this will that after her decease the said plantation shall return to the heirs of William Edwards." The so-called will was inoperative as such, for the reason that there were only two witnesses; but it was recorded on the same day as the deed. The husband having died, the widow brought suit against the children of William Edwards by a former marriage, claiming that she owned the land in fee, and seeking to have the deed avoided for fraud and the will declared a nullity. In the trial of that case, the Circuit Judge sustained the deed and refused to declare the so-called will a nullity, but held that the two papers, taken together, constituted a contract between the parties, and that Martha had only a life estate. There was no appeal from this decree. Subsequently, after Martha's death, her heirs instituted suit for partition, claiming title on the ground that Martha was the wife and one of the heirs-at-law of William. Their claim was rejected by the Circuit Court and the judgment was affirmed on appeal, primarily upon the ground that the plaintiffs were estopped by the previous suit in which their ancestor, Martha, had laid claim to the land in fee. In regard to the construction of the contract, the Court, speaking through Mr. Justice Fraser, said:
"While it is not necessary to consider the other defense, yet it may not be amiss to do so. The defense claims that Martha was not included as a remainderman, even though the word `heirs' was used, and Martha, as the wife, was one of the heirs of William. This defense is also sustained. Judge Peurifoy heard this case and sustained the defense.
"The appellant cites Rochell v. Tompkins, 1 Strob. Eq., 114, as conclusive authority for appellants. The case does not bear out the appellant's contention. In Rochell v. Tompkins the wife was given a life estate, with a reversion to the estate of the testator. The testator was intestate as to the remainder, and of course the wife, as an heir, inherited her share of the remainder. Here there was a remainder over after the death of Martha, the life tenant, and that remainder did not take effect until Martha was dead and could not inherit."
While the portion of the decision just quoted was dictum, it is impossible to reconcile it with the principle laid down in the other cases mentioned. It is all the more remarkable because the Bartell case was decided within three years after the case of McFadden v. McFadden. The Bartell case was not referred to in the case of Avinger v. Avinger, supra, which was decided the following year, but it must be regarded as overruled by that decision. And in the concurring opinion of Mr. Justice Cothran in the case of Clardy v. Clardy, supra, it was expressly repudiated, at least as to the principle under discussion.
Nor does the principle of estoppel referred to in the Bartell case apply to the case at bar, for as I have already stated, the issue now presented was not before the Court in the former proceedings in this cause.
Upon the death of William J. Magrath the remainder in fee passed under his will and vested in his next of kin, namely, his widow, Selina E. Magrath and his two children, Maria Gordon Magrath and Emily Magrath, petitioners in this cause. Upon the death of Selina E. Magrath in 1934, her undivided interest in remainder in the testator's estate passed under her will to her children, the said Maria Gordon Magrath and Emily Magrath; and in them and the survivor of them, the remainder in fee is now vested, in equal shares, subject to be divested only upon the death of either or both of them leaving a child or children surviving, and in that event only in favor of such child or children. This construction is implicit in Judge Grimball's order above referred to, but apart from that I am convinced that it is the correct and only possible construction under the long line of decisions in this State.
Under the only possible construction of the will according to the settled principles of law applicable thereto, the petitioners and the survivor of them are therefore life tenants of the estate, and the remainder in fee is vested in them and the survivor of them, subject to be divested only upon the death of either or both leaving a child or children surviving, and in that event, as I have said, in favor of such child or children.
Are the petitioners entitled to the relief prayed, namely, that the resigning trustee be directed to account and deliver the assets of the estate to them?
I find as matters of fact:
That both of the petitioners are unmarried and over sixty years of age, and that it is not possible for either of them to bear a child.
That the handling of the estate through a trustee up to this time has been for the convenience of the petitioners and their mother merely, and that the trusteeship was not required under the terms of the will nor necessary for the carrying out of the testator's intentions.
That due to conditions beyond the control of any of the parties, the gross income of the estate has been so reduced in the last few years as to be barely sufficient for the needs of the petitioners.
In these circumstances the petitioners are entitled to possession of the assets of the estate, to be held by them and handled in accordance with the provisions of the will, unburdened by costs of administration; and I so respectfully recommend.
Respectfully submitted,WM. McG. MORRISON, Master.
Mr. Henry Buist, Jr., for appellant, cites: As to necessary and proper parties: Sec. 404, Code, 1932; 134 S.C. 373; 133 S.E., 35; 154 S.C. 78; 151 S.E., 199. Vested remainder: 1 Strob. Eq., 114; 102 S.C. 361; 86 S.E., 771; 142 S.C. 395; 140 S.E., 801; 148 S.C. 30; 145 S.E., 459; 154 S.C. 78; 151 S.E., 199; 107 S.C. 101; 91 S.E., 986; 116 S.C. 125; 107 S.E., 26; 113 S.C. 27; 102 S.E., 210; 113 S.C. 378; 102 S.E., 643. Trust: 31 S.C. 13; 9 S.E., 804; 122 S.C. 451; 115 S.E., 603.
Messrs. Nathaniel B. Barnwell and Lionel K. Legge, for respondents, cite: Res judicata: 44 S.C. 1; 21 S.E., 617; 162 S.C. 379; 160 S.E., 881; 147 S.C. 448; 145 S.E., 193; 89 S.C. 408; 71 S.E., 101; 181 S.C. 230; 186 S.E., 909; 17 S.C. 35; 118 S.C. 470; 111 S.E., 14; 162 S.C. 379; 160 S.E., 881; 178 S.C. 415; 183 S.E., 27; 9 S.C. 441; 17 S.C. 406; 153 S.C. 43; 150 S.E., 316; 1 C.J.S., 982; 90 N.E., 994; 30 N.E., 249; 167 N.W., 78. Contingent remainder: 10 S.C. 376; 87 S.C. 55; 68 S.E., 966; 30 L.R.A. (N.S.), 115; 122 S.C. 451; 115 S.E., 603; 33 L.R.A. (N.S.), 10; 142 S.C. 395; 140 S.E., 801; 148 S.C. 30; 145 S.E., 549; 154 S.C. 78; 151 S.E., 199.
July 8, 1937. The opinion of the Court was delivered by
William J. Magrath, a resident of Charleston County, died on May 8, 1902, leaving of force his will, which was thereafter admitted to probate in the Probate Court for Charleston County. Surviving him as his next of kin were his widow, Selina E. Magrath, and their two daughters, Maria Gordon Magrath and Emily Magrath, petitioners in this proceeding.
This appeal involves the construction of the will of William J. Magrath with reference to the remainder in his estate, and the present disposition of the remaining assets of his estate.
On June 5, 1936, Maria Gordon Magrath and Emily Magrath filed their petition in the cause, alleging that the remainder of the residuary estate was, under the will, vested in them and in the survivor of them, subject to be divested only in the event of the death of either of them leaving issue surviving, and praying that the will be so construed. The defendants, Alexander Marshall, as administrator d. b. n. c. t. a. of William J. Magrath, and Carolina Savings Bank, as trustee, were made parties defendant on motion of the petitioners by order of the Court. Both defendants have answered.
The answer of Carolina Savings Bank is formal, praying the instruction of the Court.
The answer of Alexander Marshall, as administrator d. b. n. c. t. a., raises the issue that under the proper construction of the testator's will, the remaindermen are, or will be, those persons who, upon the death of both of the petitioners leaving no child or children surviving either, will at that time constitute the testator's next of kin, the answer further alleging that the persons now in esse who will constitute the next of kin of the testator at that time are certain grandnieces and grandnephews of the testator. Upon this answer, motion was made to join such grandnieces and grandnephews as parties in the cause. This motion was overruled by his Honor, Judge Grimball, before whom it was made, who held that the grandnieces and grandnephews had no possible interest under the will, and were therefore neither necessary nor proper parties, and the motion was accordingly refused.
The cause was referred to the Honorable Wm. McG. Morrison, Master for Charleston County, who, in a very full and exhaustive report, sustained the contentions of the petitioners as to the construction of the will and the present disposition of the assets of the estate. The cause then came up before his Honor, Circuit Judge Mann, upon appeal from the Master's report, who, by his decree, dated January 11, 1937, confirmed the findings and conclusions of the Master.
The present appeal is from the order of Judge Grimball and the decree of Judge Mann.
Counsel for the appellant, Alexander Marshall, in his brief, formulates four questions for our decision, as follows:
1. Are the necessary and proper parties before the Court?
2. What is the proper construction of the will of William J. Magrath?
3. Is it, or is it not, the law of the case that the respondents being bound by former decrees of the Court, the issues now raised are res adjudicata against the contention of the respondents?
4. Under the trusts which are binding upon the respondents, a resulting trust will arise in favor of the grandchildren of the brother of the testator.
These issues have been ably and learnedly argued, but after a careful study and consideration of the record and of the authorities in this State and elsewhere, we adopt, as the judgment of this Court, the report of the Master confirmed by the Circuit Judge, which will be reported.
The respondents, upon their petition duly filed, prior to the call of the case before us, sought and were granted permission to attack three decisions of this Court, to the end that they should be reviewed and overruled. The decisions referred to are: Bartell v. Edwards, 113 S.C. 217, 102 S.E., 210; Home Bank v. Fox, 113 S.C. 378, 102 S.E., 643, and Lemmon v. McElroy, 113 S.C. 532, 101 S.E., 852.
It is asserted and argued that the principle or rule of construction announced in these cases is directly at variance with the principles laid down in numerous decisions of this Court, rendered both before and since the report of these cases, notably the leading cases of McFadden v. McFadden, 107 S.C. 101, 91 S.E., 986; Avinger v. Avinger, 116 S.C. 125, 107 S.E., 26, 29; and Clardy v. Clardy, 122 S.C. 451, 115 S.E., 603, 604.
Respondents contend that the three cases under attack express a principle opposed to the universally recognized rule of testamentary construction, namely, that in the absence of clear and unambiguous indications of a different intention, derived from the context of the will read in the light of the surrounding circumstances, a class described as testator's heirs or next of kin, or relations, or such persons as would take by the rules of law if he had died intestate, to whom a remainder or executory interest is given by the will, is to be ascertained at the death of the testator, unless a different time is fixed by the word "surviving," or some other equivalent expression; and that the circumstance that the first taker or life tenant will be one of the class to whom the limitation over is made, is not so incongruous or inconsistent as to preclude the ascertainment of the membership of the class as of the time of testator's death.
A comparison and analysis of the three cases referred to show unquestionably that they are out of line with the weight of authority in this State and the overwhelming weight of authority elsewhere. In subsequent cases they have not escaped criticism in this Court upon the point involved in this appeal, which will be more fully comprehended from a reading of the Master's report.
The late Judge Ernest Moore of the Circuit bench in his learned decree in the case of Clardy v. Clardy, supra, which was affirmed on appeal, after citing many cases from this State and from other jurisdictions to the effect that the well-recognized rule is that, where there is a devise to "heirs" as a class, they take at the death of the testator, unless a different time is fixed by the word "surviving," or some other equivalent expression, and that where a life tenant is also one of a class designated as remaindermen, he is not deprived of his right as a remainderman because of the fact that he is also the life tenant, said: "The late South Carolina case of Bartell v. Edwards, 113 S.C. 217, 102 S.E., 210, is cited as opposed to these conclusions. It appears to this Court, however, that the decision upon the second point passed upon in the Bartell case was not necessary to dispose of the case, and might be regarded as dictum; and it further seems that this case is out of line with the current of authority in this State. No reference was made to the McFadden case or the other previous South Carolina cases on the point. An effort was made by the defendant to harmonize this case with the other cases, but the argument was not convincing. See Welch v. Blanchard (1911), [ 208 Mass. 523, 94 N.E., 811], 33 L.R.A. (N.S.), pages 1 to 53, for a very full note upon the question here involved. The reasons for supporting the rule are given as well as the argument against it."
This Court, with the exception of Mr. Justice Cothran, in adopting Judge Moore's decree on Circuit, however, did not overrule the Bartell case, because it was stated, without discussion, that the facts appearing therein were different from the facts in the case under consideration.
Mr. Justice Cothran, in his concurring opinion in this case, said: "I concur in affirming the circuit decree for the reasons therein stated, and am of the opinion that the cases of Lemmon v. McElroy, 113 S.C. [532], 537, 101 S.E., 852, and Bartell v. Edwards, 113 S.C. 217, 102 S.E., 210, which upon the point decided herein are out of line with the weight of authority in this State and elsewhere should be distinctly overruled."
With reference to the case of Home Bank v. Fox, supra, Mr. Justice Cothran, in his concurring opinion in Avinger v. Avinger, supra, had this to say: "I cannot reconcile this case, nor the McFadden case, nor the other cases cited herein, with the very late decision of the court, Home Bank v. Fox, 113 S.C. 378, 102 S.E., 643." And he further stated in his concurring opinion, "I think that the McFadden case is entirely in harmony with the cases cited therein and hereinabove, that the Lemmon case is not, and that it should be so declared."
The case of Lemmon v. McElroy, again meets with criticism by this Court in Wannamaker et al. v. South Carolina State Bank et al., 176 S.C. 133, 179 S.E., 896, in which case this Court, speaking through Mr. Justice Bonham, quotes with approval from the concurring opinion of Mr. Justice Cothran in the Avinger case, to the effect that the decision in Lemmon v. McElroy is contrary to the overwhelming weight of authority in this State.
Without doubt the holding in Bartell v. Edwards, supra; Home Bank v. Fox, supra, and Lemmon v. McElroy, supra, is in irreconcilable conflict, on the point under consideration, with the overwhelming weight of authority in this State. Bentley v. Long, 1 Strob. Eq., 43, 47 Am. Dec., 523; Boyd v. Hall, 104 S.C. 425, 89 S.E., 403; Brown v. McCall, 44 S.C. 503, 22 S.E., 823; Boyce v. Mosely, 102 S.C. 361, 86 S.E., 771; McFadden v. McFadden, supra; Walker v. Alverson, 87 S.C. 55, 68 S.E., 966, 30 L.R.A. (N.S.), 115; Bankhead v. Carlisle, 1 Hill Eq., 357; Avinger v. Avinger, supra; Clardy v. Clardy, supra. And in conflict with the overwhelming weight of authority recognized in other jurisdictions, as will be seen by reference to 69 C.J., Wills, § 1279 et seq., and the numerous cases cited under this section. Also see a most comprehensive note on the subject, found in 13 A.L.R., 615, following the report of the well-considered case of Himmel v. Himmel, 294 Ill., 557, 128 N.E., 641, 13 A.L.R., 608.
Inasmuch as these three cases are out of harmony with the settled rule in this State, they are no longer to be regarded as announcing the correct rule, and to the extent that the principle therein declared is out of line upon the issue here involved, they are overruled.
Under the well-settled law in this State, the remainder in fee in the testator's estate is vested in the petitioners, Maria Gordon Magrath and Emily Magrath, and the survivor of them, subject to be divested only upon the death of either or both of them leaving a child or children surviving; and in that event, in favor of such child or children. It logically follows, in accordance with the report of the Master and the circuit decree, that the defendant, Carolina Savings Bank, will file its account of its actings and doings as trustee, and transfer and deliver to each of the petitioners one-half of the assets of the estate of William J. Magrath remaining in its hands, possession, or control, the same to be held and handled by the said petitioners respectively in accordance with the will of the testator.
As directed by the circuit decree, the costs in this proceeding will be paid out of the estate.
We have carefully considered the questions raised by the appellant, and have studied with sustained interest the able brief of appellant's counsel, but we conclude that there is no merit in the exceptions.
The judgment of the lower Court is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BONHAM and BAKER, concur.