Opinion
13961
December 11, 1934.
Before OXNER, J., Allendale, March, 1933. Affirmed.
Petition by Emmie Sams Pippin, as executrix, and T. O Lawton and another, executors of the last will and testament of D. Sams, deceased, opposed by Moylin M. Sims, for probate of the will. The Probate Court admitted the will, and from the decision of the Circuit Court construing the will on submission of issues by agreement of counsel, defendant appeals.
The Circuit Court's decree and the exceptions were as follows:
This case was begun in the Probate Court for Allendale County. It appears from the record: That one D. Sams died on the 27th day of September, 1932, leaving of force his last will and testament bearing date of the 29th day of July, 1930. That said will was admitted to probate in common form by the Judge of Probate for Allendale County on the 3rd day of October, 1932. That on the 24th day of October, 1932, Moylin M. Sams, the widow of the said D. Sams petitioned the Probate Court to require the will of the said D. Sams to be proven in due form of law; and, thereafter, the executrix and executors of the said will of said D. Sams filed a petition to be permitted to prove same in solemn form. That at the time of the death of the said D. Sams, he left surviving him his said widow, Moylin M. Sams, and one daughter by a former marriage, Emmie Sams Pippin. That said Moylin M. Sams and said D. Sams were married about 1906, and lived together for about two years only, and had been separated ever since then. That in 1919 the said Moylin M. Sams who was then and is now a resident of the City of Washington instituted a series of actions against said D. Sams, which litigation finally terminated in a settlement in the year 1924, at which time he paid her approximately $9,000.00 for her alimony rights, $4,500.00 attorney's fees, and $20,500.00 as a consideration for the execution of a certain instrument, bearing date the 23rd day of October, 1924, wherein and whereby she released and conveyed unto him, his heirs, executors, administrators, and assigns, with covenants of general warranty, each and every claim of any nature and kind that she had or might thereafter have against him arising out of their marital relationship or from any other source or relationship between them, specifically including any and all claims whatsoever that she might then have, might have had in the past, or might thereafter have "of and for dower in any property at any time in the past, or at the present time, or in the future, owned by the said Duncan Sams," all future support, alimony, and maintenance, and every other claim of every nature and kind against said D. Sams. That the will of the said D. Sams devised and bequeathed all of his property (except a few personal articles) to his executors in trust, to collect and receive the rents, profits, interest, and income, to sell, to reinvest, with instructions to pay his daughter, Emmie Sams Pippin, during her lifetime, $100.00 a month, and, as each child of said Emmie Sams Pippin attains his or her majority, such child shall be paid $100.00 a month during his or her lifetime, and upon the death of Emmie Sams Pippin, and her children, the trust shall terminate and all of the property be divided among the issue of said Emmie Sams Pippin, and in the event she die leaving no issue, the property shall revert to the estate and be divided according to the statute of distributions.
The petition of the executrix and executors, among other things, alleged that by reason of the instrument in writing, dated the 23rd day of October, 1924, Moylin M. Sams is not entitled to any interest in the estate of the said D. Sams.
The said Moylin M. Sams, in her answer to said petition, admits the execution of said instrument, but denies that same was or is a conveyance of any of her rights in said estate and alleges that the will is void because of mental incapacity of the testator and also because same is against public policy and in violation of the law of perpetuities.
Upon the issues being joined, the cause was heard before the Judge of Probate for Allendale County, who, by his decree dated the 31st day of March, 1933, states that there were but two points involved before him, one the mental capacity of the testator and the other the question of whether or not the will offends against the law of perpetuities; that the latter question was not before him as the Court of Probate is not a tribunal of construction, and on the former question he held that the testator, D. Sims, on the date of the execution of the will, did have sufficient mental capacity to make a valid will; and that, all necessary formalities having been complied with and the execution of the will having been duly proven as required by law, he ordered that the same be admitted to probate in due form of law.
From the decree of the Judge of Probate, Mrs. Moylin M. Sams appealed, upon the exceptions set out in the record.
The case came on to be heard before me, at Allendale, at the April, 1933, term of Court of Common Pleas, without a jury, and by agreement of counsel there was submitted to be heard by the Court the following questions: (1) Will or no will; (2) construction of the will; (3) estoppel; (4) election.
As to the question of will or no will, it was admitted by counsel for Mrs. Sams that all the formalities required by law as to the execution of the will had been fully and strictly complied with, and the only point involved under this heading is as to the mental capacity of the testator.
The three witnesses to the will, Judge J. Henry Johnson, his brother, C. Birnie Johnson, and Mrs. C. Birnie Johnson, together with all other witnesses who testified concerning the mental capacity of the testator, established the fact, beyond any question of doubt, that the testator, D. Sams, on the date of the execution of his will, prior thereto, and thereafter, had more than the average amount of intelligence and was fully able and competent to execute the will in question and to dispose of his property thereunder. And I find that the testator, D. Sams, at the date of the execution of the will in question, did have sufficient mental capacity to make a valid will and that, all necessary formalities having been strictly complied with and the execution of the will being such as meets with all the requirements of the law, the Judge of Probate properly admitted same to probate in due form of law.
The next question raised by Mrs. Sams is as to the construction of the will, that is, whether or not same violates the law against perpetuities.
An examination of the will discloses that all of the estate is devised to the executors to be held by them in trust and to pay over certain amounts from the income thereof to the daughter of the testator, Emmie Sams Pippin, and her children and, upon the death of said Emmie Sams Pippin and her children, the trust shall terminate and the property is directed to be divided among the issue of the said Emmie Sams Pippin, and, in the event the said Emmie Sams Pippin should die leaving no issue, the property shall revert to the testator's estate.
I construe the will to mean that the trust is for the benefit of Emmie Sams Pippin and her children in being at the date of the death of the testator. The record shows that Emmie Sams Pippin has two children, both of whom were in being at the date of the death of the testator and at the date of the execution of the will, and both of these children were mentioned by Mr. Sams in his will by name, other small legacies having been given to them.
This construction is based upon the authority of many cases heretofore decided by our Supreme Court, among them being the cases of Coogler v. Crosby, 89 S.C. 508, 72 S.E., 149, and Robinson v. Harris, 73 S.C. 469, 53 S.E., 755, 6 L.R.A. (N.S.), 330. In the Coogler case, the Court held, in descussing a similar device: "The other point made by the appeal involves the construction of the following devise in the will of Jessie Wirick: `I give, devise, and bequeath to Simon Mobley and his children, Shadrac Countee and his children, Hilliard Countee and his children forever the balance of the Alston or Martin tract and what is known as the Adam Wirick Piney Woods tract and the Taylor tract.' Contrary to the contention of appellants, the law is settled that the persons named and their children living at the death of the testator took the land to the exclusion of their children born after the death of the testator. Myers v. Myers, 2 McCord, Eq., 214, 16 Am. Dec., 648; Robinson v. Harris, 73 S.C. 469, 53 S.E., 755, 6 L.R.A. (N.S.), 330."
And in the Robinson case, the Court held: "A devise to testator's sister and her own children, and to his nephew and his children, so long as they may live, to each share and share alike, vests the land in the sister and the nephew and such children as are living at the time of testator's death, and a child born to the nephew after such death takes no interest."
So that the testator's intention, if it could be said that it was not his intention to confine the benefits of the trust to Emmie Sams Pippin and her children in being at the date of testator's death, would be subordinated to the rule of law which limits the gift to the children in being at the date of the death of testator. See, also, Tindal v. Neal, 59 S.C. 4, 36 S.E., 1004, and Myers v. Myers, 2 McCord, Eq., 214, 16 Am. Dec., 648.
These cases clearly establish the rule of law to be applied in the case at bar and show conclusively that the terms of the will in question are not such as to make the devise so remote as to violate the rule against perpetuities, for it is clear that the income is to be paid to Mrs. Pippin during her life and to her children in being at the date of the death of testator from the time they reach their twenty-first birthday until their deaths; and should any further children be born to Mrs. Pippin, they cannot participate in these payments of income because of the rule of law above set forth rather than because of any construction which might attempt to state what the testator intended. The trust will terminate on the death of Mrs. Pippin and her two children in esse at the date of the death of the testator and the property will then vest in the issue of Mrs. Pippin; and this, of course, must take place well within the limitations set, for it will take place at the termination of a life in being and will not even have to go a single day of the twenty-one years allowed after the termination of a life in being.
I therefore find that the will does not violate the law against perpetuities and none of its provisions are to be disturbed.
There was also argued before me the question of the separability of the bequests if any should offend against the law of perpetuities, but, having found that the will does not sin against the law of perpetuities, the question of separability becomes purely academic.
It having been found that the will in question is a valid will and that the provisions thereof do not violate the law against perpetuities, next, as the will does not provide in any way for Mrs. Sams, the question arises as to whether or not she is entitled to dower, which is the only possible interest which could accrue to her from the estate of D. Sams in view of the terms of the will.
This brings us to a construction of the instrument executed by Mrs. Sams to Mrs. Sams, bearing date the 23rd day of October, 1924. Mrs. Sams contends that this instrument was partially without consideration and therefore was not binding even between herself and D. Sams, and cannot bar her claims against his estate; that she had no power to make a conveyance which would estop her from claiming against the estate; and that the said instrument would not in any case be sufficient to bar her dower rights. The executrix and executors contend that Mrs. Sams received as consideration for the execution of the instrument in question the sum of $20,500.00 and that as she has not returned nor has she offered to return the said amount so received by her as consideration for the execution of said instrument, she is now estopped to deny the validity of same.
The testimony shows that the sum of $20,500.00 was paid as consideration for the execution of the instrument in question.
Since the adoption of the Constitution of 1895, it appears that no case has arisen expressly defining the rights of a married woman to execute an instrument similar to that under consideration; but, prior to the adoption of the Constitution of 1895, there are several cases on this point, beginning with that of Shelton v. Shelton, 20 S.C. 560.
In the Shelton case it appears that a husband and wife had entered into an agreement with a view of separation, and the husband conveyed certain property to the wife which she agreed to accept in lieu and in consideration of all claims or demands upon the husband or his estate and relinquished all further claims upon him for support or otherwise, and the Court went on to say:
"The law has prescribed a particular form by which a married woman must relinquish her right of dower. See Townsend v. Brown, 16 S.C. 92. But since the Constitution of 1868, and the laws passed thereunder, giving a married woman the right to contract as if she were a femme sole, we suppose that a married woman may so covenant not to claim dower, as to make it binding upon her by way of estoppel. But we would say that the covenant of a married woman, to have that effect in relation to an inchoate right of dower, future and contingent in character, should be entirely free from doubt, clear, positive and express in its terms."
But the Court held that as the instrument in question in that case did not in express terms include her right to dower, she was not barred by the execution thereof.
In Smith v. Oglesby, 33 S.C. 194, 11 S.E., 687, 688, the Court held:
"As to the claim of dower, it appears that Mrs. Smith, in March, 1870, when the act giving a married woman the power to contract, and be contracted with, the same as if she was unmarried, was of force, executed a written instrument in the presence of two witnesses, besides her husband, by which she agreed to release all her right and title to dower in said land if Lee Lindler or the defendant would pay to her daughter Mrs. Wood about $575.00. This money, it seems, was paid by the defendant to Mrs. Wood, or to her husband, in consequence of the execution of this paper; but it does not appear that any renunciation of dower was ever formally executed. Now the question arises, what effect is this paper to have upon her claim for dower? It must be remembered that at the time of its execution, under the act of the general assembly then in force, she was legally a femme sole as to the power of contracting, and being contracted with. She had this power without limit, except such as applied to all other persons. Such being the fact, we cannot see why she could not make at that time a binding contract to release her claim, for dower as well as contract with reference to any other matter. If she had this power, she certainly exercised it, and that, too, in a formal manner, in writing, and for a valuable consideration in money, which was paid. We must think that this contract, made and executed in this manner, was a binding contract, and, while not conveying the dower to the defendant in the manner required by the act in such cases made and provided, yet should estop Mrs. Smith from now claiming it. The doctrine of estoppel is a salutary doctrine, and frequently prevents fraud, and it seems to us that its application is demanded here. Oglesby parted with his money — over $500.00 — upon the faith of this agreement made by Mrs. Smith. There has been no offer to return this money, and it would be very inequitable to allow her to recover, under such a state of facts. Bull v. Rowe, 13 S.C. 355, Bigelow, Estop. 480."
In McKenzie v. Sifford, 48 S.C. 458, 26 S.E., 706, 707, where a wife had covenanted with her husband, from whom she was separated, "to renounce and release unto my said husband, his heirs and assigns, all my right or claim of dower to and in any and all lands now or hereafter owned by him," after the death of the husband she brought suit to set aside the covenant on the ground that it was without consideration. It was held that it was upon the consideration of $1,000.00 paid to her and that, unless she refunded the consideration, she was not entitled to have the covenant set aside; and the case was remanded for a new trial in order that the plaintiff might have determined the question as to whether or not the covenant should be set aside because the plaintiff was a married woman at the time of its execution. This case again came before the Supreme Court and is reported in 52 S.C. 104, 29 S.E., 388, 389, when the Court held:
"We cannot understand how the plaintiff can be allowed by a Court of equity to retain the $1,000.00 which was paid to her as the consideration for renouncing her dower in Joseph S. McKenzie's lands, and still have that Court to cancel her deed of covenant binding her to renounce her right of dower."
This decision reversed the decision of the Circuit Court wherein it had been held that the wife did not have to return the $1,000.00; and held, as above stated, that she must refund the $1,000.00, with interest thereon from the date the same was paid her, before she could ask for a cancellation of the covenant.
The next case considered by our Courts is that of Moon v. Bruce, 63 S.C. 128, 40 S.E., 1030, 1031, in which case it was held that the covenant relied on did not clearly express an intention to release dower, and further held that under the authority of the Shelton case and the case of Smith v. Oglesby, for a married woman, without private examination and the formalities required by the statute in relation to the renunciation of dower, upon valid consideration, to execute such contract as would estop her from claiming dower, the contract should be entirely free from doubt, clear, positive, and express in its terms.
And the last case which it appears that our Supreme Court has considered, in passing on this question, is that of Gainey v. Anderson, 87 S.C. 47, 68 S.E., 888, 31 L.R.A. (N.S.), 323, which is a case where a wife joined with her husband in the execution of a deed to a piece of property over which her husband had previously given a mortgage on which she had renounced her dower. And the Court held that merely signing a deed with her husband would not estop her to claim dower. In this case all the previously-mentioned cases were reviewed, and the Court stated that, in considering the question of whether the wife is estopped by the covenant of general warranty contained in a deed she had signed with her husband and which was executed prior to the Constitution of 1895, the question must be determined by the powers conferred on married women by the Constitution of 1868 and the laws enacted thereunder, and that no opinion was expressed as to the effect of such a covenant by a married woman since the adoption of the Constitution of 1895; and went on to hold that, under the authority of McKenzie v. Sifford, 52 S.C. 104, 29 S.E., 388, it is the established law (not considering the additional powers conferred on a married woman by the Constitution of 1895) that she would be estopped to have an instrument similar to that under consideration in the case at bar set aside unless she first returned the consideration paid her for its execution, with interest thereon from the date of payment, which in the case at bar is the sum of $20,500.00, with interest.
So, regardless of the question of what powers were conferred on married women under the Constitution of 1895, there can be no doubt, under the authority of the cases cited, that Mrs. Sams cannot ask this Court to set aside the instrument in question without first returning the consideration paid to her for the execution thereof, that is, the sum of $20,500.00, with interest thereon from the 23rd day of October, 1924. And, as she has failed to do this, or even to offer to do this, she is now estopped to deny the validity thereof; and I so find.
The question of will or no will, the question of whether or not the will offends against the law of perpetuities, and the question of the effect of the instrument executed by Mrs. Sams wherein and whereby she renounced all her rights, including her dower interest, having all been decided adversely to the contentions of Mrs. Sams, it is not necessary to pass on the question of election, which is thus rendered purely academic.
It is, therefore, ordered, adjudged, and decreed, that the paper, dated July 29, 1930, signed by D. Sams, and admitted to probate in due form of law by the Probate Court for Allendale County, on the 31st day of March, 1933, be and the same is hereby declared to be the true last will and testament of D. Sams, deceased; and that the same does not violate the rule against perpetuities and none of its provisions are to be disturbed; and, it is further ordered, adjudged, and decreed that Mrs. Moylin M. Sams be and she hereby is estopped from claiming any dower rights in any of the property of the estate of D. Sams, deceased; and it is further ordered, adjudged, and decreed that the decision and judgment of this Court be certified by the Clerk of Court to the Probate Court for Allendale County, as required by statute in such case made and provided.
EXCEPTIONS1. His Honor erred in holding that D. Sams had sufficient mental capacity to make his will, for that at the time of the execution of the said will, the said D. Sams did not and could not know in the true legal sense those who were, and who ought to have been the objects of his bounty.
2. His Honor erred in holding that the word "children," as used in the will, should be construed to include only children in being at the time of the death of the testator, whereas he should have held that the word "children" included all those who might come within the designation of "children prior to and up to the time of distribution," at which time the class is to be determined.
3. His Honor erred in holding that the word "children" meant only those children in being at the death of the testator, this construction being negatived by the will in its entirety, which shows that it was not the intention of the testator to so restrict the class of life tenants.
4. His Honor erred in holding that the will was without the rule against perpetuities because there was and is a continuing possibility that Emmie Sams Pippin will have children born after the death of the testator, and that these after-born children will outlive Emmie Sams Pippin, their mother, and Pauline and N.R. Pippin, their brother and sister, thus delaying the vesting of the final remainder beyond a life or lives in being and the twenty-one years thereafter.
5. His Honor erred in holding that the instrument of October 23, 1934, executed by Mrs. Sams to D. Sams estopped Mrs. Sams from contending for her inheritance even if the will should be held invalid, and for dower if it should be held valid, whereas the only effect of the said instrument was to satisfy certain claims existing at the time of its execution, including her judgment against D. Sams, and, further, to release to him any interest which she then had in his property, thus placing the absolute title to such property in the ancestor (her husband) under whom she now claims.
6. His Honor erred in holding that the instrument of October 23, 1934, barred Mrs. Sams from her right of dower, the formalities required by the Code not having been complied with.
7. His Honor erred in holding that the instrument of October 23, 1934, affected in any manner Mrs. Sams' right to inheritance of dower because the said instrument was without consideration except as to release of her judgment and her then existing claims above referred to.
8. His Honor erred in holding that Mrs. Sams was estopped to deny the validity of the instrument of October 23, 1934, and that she was therefore estopped to deny the validity of the will for that the interests of no innocent parties, or third parties, are involved in the transaction.
9. His Honor erred in holding that Mrs. Sams could not contest the validity of the instrument of October 23, 1934, without first returning the consideration thereof, for the reason that the release of her judgment and her then existing claims above referred to amount to more than the consideration paid to her, and that portion of the instrument dealing with interests or rights other than those coming within her judgment and existing claims was without consideration.
Messrs. Patterson Tobin and Searson Searson, for appellant, cite: Capacity of testator to make will: 140 S.C. 1; 138 S.E., 355; 134 S.C. 412; 132 S.E., 811; 117 S.C. 312; 108 S.E., 921; 6 L.R.A., 170; 126 S.C. 250; 119 S.E., 800. Estoppel: 83 S.C. 78; 64 S.E., 513; 49 S.C. 546; 27 S.E., 520; 55 S.C. 336; 33 S.E., 466; 20 S.C. 560; 16 S.C. 92; 65 S.C. 126; 40 S.E., 1030; 19 S.C. 9; 49 S.C. 546; 27 S.E., 520; 53 S.C. 1; 30 S.E., 586; 172 S.C. 362; 174 S.E., 33; 48 S.C. 458; 26 S.E., 706; 51 S.C. 442; 29 S.E., 230; 63 S.C. 126; 40 S.E., 1030. Construction of will: 146 S.C. 296; 144 S.E., 1; 98 S.C. 508; 72 S.E., 149; 73 S.C. 469; 53 S.E., 755; 8 Rich., 241; 9 Rich. Eq., 459; 6 Rich. Eq., 401; 25 S.C. 292; 25 S.C. 362; 85 S.C. 319; 67 S.E., 556; 27 S.C. 49; 4 S.E., 64; 148 S.C. 52; 145 S.E., 623; 56 S.C. 4; 33 S.E., 729; 21 R.C.L., 209; 46 Am. Dec., 667; 18 N Y, 12; 66 S.C. 155; 44 S.E., 564; 18 S.E., 96; 7 S.E., 118; 72 A.S.R., 441; 27 A.S.R., 586; 73 A.S.R., 405. Messrs. C. Birnie Johnson and Randolph Murdaugh, for respondent, cite: Testator's capacity: 134 S.C. 412; 132 S.E., 811; 50 S.C. 105; 27 S.E., 555; 7 Rich., 479; 4 McC., 183; 17 Am. Dec., 722; 140 S.C. 1; 138 S.E., 355. Estoppel: 19 C.J., 511; 20 S.C. 560; 16 S.C. 92; 33 S.C. 194; 11 S.E., 687; 13 S.C. 355; 48 S.C. 458; 26 S.E., 706; 51 S.C. 552; 29 S.E., 230. Construction of will: 89 S.C. 508; 72 S.E., 149; 2 McC. Eq., 241; 16 Am. Dec., 648; 73 S.C. 469; 53 S.E., 755; 6 L.R.A. (N.S.), 330; 59 S.C. 4; 36 S.E., 1004; 8 Rich. Eq., 241; 73 A.S. R., 405; 144 S.C. 18; 142 S.E., 50.
December 11, 1934. The opinion of the Court was delivered by
This case was begun in the Probate Court on petition filed October 24, 1932, by the appellant to require the will of D. Sams, deceased, to be proved in due form of law. The Probate Judge held that the testator had sufficient mental capacity and admitted the said will to probate in due form of law; the Probate Court held that he had no jurisdiction to construe the will. The matter was then heard by Judge Oxner without a jury, by agreement of counsel, and all issues were submitted to him. We think the questions raised were properly disposed of by the Circuit Judge and his learned decree is made the opinion of this Court.
The exceptions are overruled and the judgment below is affirmed. In addition to the circuit decree, the recent case of Watson v. Watson, 172 S.C. 362, 174 S.E., 33, fully sustains the Circuit Judge in holding that the appellant is bound by her agreement not to claim dower in any of the real estate of her husband, D. Sams, and that now, as the widow of the testator, she having contracted while her husband was alive not to claim dower, and to relinquish dower if called upon, is now estopped and cannot assert any claim whatsoever to dower rights in any lands of which her husband died seized and possessed, nor in any lands alienated by him. Therefore, all of the exceptions relating to the appellant's right of dower are overruled.
Furthermore, the finding of the Probate Court, affirmed by the circuit decree, holding that D. Sams had sufficient mental capacity to make the will, is fully sustained by the testimony and all exceptions relating to testamentary capacity are overruled.
Likewise, the circuit decree holding that the word "children," as used in the will, limits the gift to the children in being at the death of the testator, is supported by the authorities cited, and the will does not violate the law against perpetuities, and all exceptions relating to this issue are overruled.
The appellant has urged in argument most earnestly that the release executed by her does not include her claims against the estate of D. Sams, as an heir at law or distributee; and that she did not release her right of inheritance in his estate. But counsel for appellant admits that the testator has the right to control his property after his death by a valid will, executed in conformity with the requirements of law, so that the appellant can claim nothing in the estate of her deceased husband under the terms of his will and she is bound by the will. Therefore, all exceptions relating to this claim to a part in his estate are overruled.
It is, therefore, ordered that the judgment below be, and hereby is, affirmed.
MESSRS. JUSTICES STABLER, CARTER, and BONHAM, concur.