Opinion
15591
November 30, 1943.
Before J. HENRY JOHNSON, J., Newberry County, June, 1943. Affirmed.
Proceeding by Carobel West Youmans, as Executrix of the Last Will and Testament of James Henry West, deceased, against Sallie West and John Gardner, Administrator With Will Annexed of the Estate of Lillian West, deceased, for the construction of the Will of James Henry West. From an Order of Judge Johnson construing the said Will of James Henry West, Sallie West and John Gardner, the Administrator With Will Annexed of Lillian West, appeal.
The Circuit Decree of JUDGE JOHNSON, ordered to be reported, follows:
This matter comes before me on an appeal from the Probate Court of Newberry County in its construction of the will of James Henry West, deceased, in one particular.
The testator died on September 11, 1941, his will was probated September 20, 1941, on which date letters testamentary were issued to Carobel West Youmans, a half-sister, as executrix, and Floyd Bradley, a friend, as executor. A brother, Thomas O. West, also named as an executor, did not survive the testator. On July 1, 1942, Floyd Bradley died, and thereupon the remaining duties of administering the estate fell upon the executrix.
On February 12, 1943, the executrix filed in the Probate Court her first return, accounting for her acts and doings as executrix, and those of herself and Floyd Bradley, executor, so long as he lived, and therewith filed her petition, showing that she had paid all claims against the estate, all expenses of administration so far incurred, that she had carried into effect all specific devises of real estate, had paid and settled all specific or pecuniary legacies, except the shares of stock in the Kentucky Central Life Accident Insurance Company, which were disposed of by Item 12 of the will, and the construction of which involves the question now before the Court. The executrix by her said petition further showed that all the residue of the estate has been reduced to cash, as directed by Item 14 of the will, with the exception of one parcel of real estate, appraised at $1,700.00, which she contemplated disposing of soon; that she had filed inheritance tax returns with the State of South Carolina, and had paid the taxes so assessed; had also filed a Federal estate tax return, commonly referred to as the Federal inheritance tax and had paid the taxes shown due thereby, but that the Federal return had not been audited or approved. The executrix reported that she had not paid income taxes for either 1942 or 1943. But, except as stated, the executrix asserted she had paid all liabilities of the estate, and had carried into effect and settled all of the devises and legacies provided for in the will, except distributing the shares of stock in the Kentucky Central Life and Accident Insurance Company, as directed by Item 12, and the residue of the estate as directed by Item 14 of the will, and that she was ready to distribute said stock, under Item 12, and a portion of the cash from the residue, under Item 14, reserving a sufficient amount of the residue to take care of all tax liabilities and contingencies.
The executrix further alleged in her petition, in effect, that she was in doubt as to whom the share of Lilian West, given under both Items 12 and 14 of the will, should be distributed, whether to the estate of Lilian West or to the remaining legatees mentioned in Items 12 and 14 of the will. The executrix also asked for another minor construction of the will, with which we are not now here concerned.
On the date of the filing of said return and accounting and petition by the executrix, the Probate Judge passed an order approving the distribution of all the shares of stock in the Kentucky Central Life and Accident Insurance Company, except the share of Lillian West and the five odd shares, and directed that the shares which otherwise would have been distributed to Lilian West and the five odd shares be held by the executrix until a hearing could be had thereon.
On February 18, 1943, the Probate Judge issued a notice to all parties interested that a hearing would be held on the accounting and petition of the executrix in his office on April 2, 1943. This notice was personally served upon all of the legatees mentioned in Items 12 and 14 of the will. At the hearing in the Probate Court, held pursuant to said notice, the executrix filed her second return, whereby she showed that she had disposed of the last parcel of real estate, and had thereby converted all of the residue of the estate into cash. At the hearing, the returns of the executrix were approved, and the construction of the will, as prayed for by the executrix, was taken under advisement by the Probate Court. On April 9, 1943, the Probate Court filed its decree, construing the will, and within due time thereafter, Carabel West Youmans, as executrix and as an individual, filed an appeal from this decree, in so far as it held that the share of Lillian West, under Items 12 and 14 of the will, goes to her estate, and alleged error in the Probate Court failing to hold that such share should be divided among the other legatees mentioned in said items. Said items are as follows, and the particular provision of each item, giving rise to this question is emphasized by me by the italicizing thereof:
"Twelfth. I will, devise and bequeath the one thousand (1000) shares which I own of the stock of the Kentucky Central Life and Accident Insurance Company of Anchorage, Kentucky to the following: my brother Benjamin W. West of Terre Haute, Ind. One Hundred (100) shares; my brother Thomas O. West of Louisville, Kentucky, One Hundred (100) shares; Mrs. Corrie West of Newberry, S.C. the widow of my brother Charles M. West One Hundred (100) shares; Mrs. Lee West of Louisville, Kentucky, the widow of my brother Otis E. West One Hundred (100) shares; Lillian West of Colorado Springs, Colorado, the daughter of my deceased brother Sammie A. West Fifty (50) shares; Mrs. Sallie West of Colorado Springs, Colorado, the mother of the above named Lillian West Fifty (50) shares; Pearl West of Newberry, my half-sister One Hundred (100) shares; Alice West Yates of Winnsboro, South Carolina, my half-sister One Hundred (100) shares; Robert H. West of Louisville, Kentucky, my half-brother One Hundred (100) shares; Mary E. West of Newberry my step-mother One Hundred (100) shares; Carobel West Youmans of Columbia, S.C. my half-sister Fifty (50) shares; Tilla Louise West of Newberry, South Carolina, my half-sister Fifty (50) shares. It is my will that in the event that any of the legatees mentioned in this twelfth clause die before the date of my death or before the final settlement and distribution of my estate that the share herein devised to them shall go to their widow or widower and children share and share alike if there be children; if there be no children then to the widow or widower; if there be no widow or widower or children the said share shall be divided among the remaining legatees listed in this twelfth clause of my will in the same proportion as stated. In the event that I do not own One Thousand (1000) shares of this stock at the time of my death or in the event I shall own more than One Thousand (1000) shares of this stock at the time of my death I will, devise and bequeath such of this stock as I may own at the time of my death to the persons named and in the manner designated in this twelfth clause of my will and in the proportion as stated for the One Thousand (1000) shares."
"Fourteenth. I will, devise and bequeath all the rest and residue of my estate of whatever character, and direct that my Executors and Executrix shall sell the same and divide the proceeds thereof, share and share alike to the following; my brother Benjamin W. West of Terre Haute, Ind.; my brother Thomas O. West of Louisville, Kentucky; Mrs. Corrie West of Newberry, S.C. the widow of my brother Charles M. West; Mrs. Lee West of Louisville, Kentucky, the widow of my brother Otis E. West; Lillian West of Colorado Springs, Colorado, the daughter of my deceased brother Sammie A. West; Mrs. Sallie West of Colorado Springs, Colorado, the mother of the above named Lillian West; Pearl West of Newberry, S.C. my half-sister; Alice West Yates of Winnsboro, S.C. my half-sister; Robert H. West of Louisville, Kentucky, my half-brother; Mary E. West of Newberry, S.C. my step-mother; Carobel West Youmans of Columbia, S.C. my half-sister; Tilla Louise West of Newberry, S.C. my half-sister. It is my will that in the event that any of the legatees mentioned in this fourteenth clause of my will die before the date of my death or before the final settlement and distribution of my estate that the share herein devised to them shall go to their widow or widower and children, share and share alike, if there be children; if there be no children then to the widow or widower; if there be no widow or widower or children the said share shall be divided among the remaining legatees listed in this fourteenth clause of my will in the same proportion as stated."
Lillian West died on October 31, 1942, survived by neither husband nor child, leaving a will, under which her entire estate was left to her mother, Sallie West, the same person so designated as one of the legatees under the above-quoted items of the will of James Henry West. John Gardner was appointed as administrator with will annexed of Lillian West, and he and the said Sallie West have appeared in this appeal, through their attorney, as respondents, and ask that the decree of the Probate Court be sustained.
This appeal, by the express consent of the attorney for the respondents and the attorneys for the appellant, was marked heard by me at the April, 1943, term of Court, and was fully argued before me on May 25, 1943, after which I took the matter under advisement.
After careful consideration of the question, I have reached the conclusion that the appeal should be sustained, and hold that it is my construction of the will that the share of Lillian West does not pass under her will but should be divided among the living legatees named in said Items 12 and 14. While it is of no importance here, it is a fact that all of the other legatees mentioned in said items are now living, except Thomas O. West, who pre-deceased the testator.
The Probate Court held that each of the legatees under Items 12 and 14 took a vested interest under the will, subject to be divested upon death within the period intended by "before the final settlement and distribution of my estate," and a study of the will led the Probate Court to the conclusion that the "testator" had in mind a period of one year from the date of his death as the time within which the defeasance might take place.
A study of the entire will convinces me that the quoted language should be given its ordinary meaning. The quoted language has a clear, unambiguous meaning, and I can find nothing from a reading of the whole will that requires it to be disregarded, or that requires it to be given a meaning other than its ordinary, literal interpretation. The fact that the ordinary meaning of the language used by the testator delays the vesting of, and the right to, his property, and makes uncertain the time and persons who would ultimately be entitled to receive it, were all circumstances that no doubt the testator considered at the time of the making of his will. There is no law that prohibited the testator from creating such delay and uncertainties as the literal interpretation of the language he used embodied. And we can well understand why a testator might wish to provide that if those named as beneficiaries are not living at the time of distribution, his property should go to others; otherwise, his property might go to strangers. Having the right to so make his will, it is the duty of the Court and his executrix to carry it out as written.
One of the considerations that has led me to that conclusion is Item 16 of the will, which reads as follows: "It is my will that all of the dividends from the securities, specifically devised in this will shall be collected by my Executors and Executrix for the period of one year after my death and to the next succeeding dividend period thereafter, and that they shall account to the legatees to whom said stock is devised for the pro rata yield of said stock for the period beginning one year after my death and ending at the next succeeding dividend period thereafter, fractional months to be computed in favor of my estate, but I direct that my Executors and Executrix shall in lieu of delivery of the stock to the devisees to whom it is devised in this will, vote said stock as the respective devisees shall direct or execute to them their proxies therefor. It is my further will that the income from my store property left to the First Baptist Church of Newberry shall be collected by my Executors and Executrix for a period of one (1) Year following my death and that any rents that may be collected after the date of One (1) year from my death shall be paid to the said First Baptist Church of Newberry, a fractional month to be computed in favor of my estate."
It will be observed from a reading of this paragraph that the testator prohibited a final settlement and distribution of his estate within one year from his death, by directing that the stock, which he had specifically bequeathed, be held and the dividends thereon collected for one full year following his death, and to the next succeeding dividend period thereafter. The testator had specifically bequeathed by his will three different stocks to his widow (Item 3), a different stock by Items 11 and 13, as well as the stock disposed of under Item 12.
The legacies of stock bequeathed to his wife were thereafter revoked by codicil, and the stocks specifically bequeathed in Items 11 and 13 were sold under a contract made by the testator, prior to his death. But at the time of the making of the will, Item 16 thereof applied to all specific legacies of stock embraced in Items 3, 11, 12 and 13. And in none of the four items last mentioned, except No. 12, did the testator provide that the legatee must be living at the time of the final settlement and distribution of his estate for the legacy to take effect.
It is an admitted fact that the regular date for the declaration of the annual dividend by the Kentucky Central Life Accident Insurance Company was on the third Tuesday of January of each year, and had been for a long number of years. Testator owned at the time of his death 2,003 shares of this stock, which were appraised at approximately $50,000.00. The testator must have had knowledge of the regular dividend date, and intentionally prohibited the distribution of that stock until two annual dividends had been paid after his death.
The opinion of the Probate Court states that unquestionably, the pro rata share of the dividend, that Item 16 directs to be paid to the legatees, contains no provision for a defeasance, and unless his decree is sustained, it will mean that the estate of Lillian West will get the pro rata share of dividend on this stock, under Item 16, but will be deprived of the stock under Item 12. But again I think the Probate Judge in error. This pro rata share of dividends, provided for the legatees, will go to the persons who take the stock.
The Probate Court also stresses the fact that the testator directed his executors to collect the rent on the property devised to the First Baptist Church for one year following his death. But again it will be observed that that provision had no bearing upon the time of the vesting of the devise to the church. Beyond any doubt, the devise in favor of the First Baptist Church vested immediately upon testator's death, subject only to the right of the executors to collect the rent. There is no defeasance connected with it.
It is significant, I think, that the testator in his will used the expression, "one year after my death," six times. But when he came to his act of fixing the time for defeasance of the legacies under Items 12 and 14 on both occasions he used the identical expression, "before final settlement and distribution of my estate."
The Probate Court further held that the executor and executrix had one year from the probate of the will in which to make the distribution, and in the absence of special difficulty, this one year was sufficient, citing Lowman v. Lowman, 69 S.C. 543, 48 S.E., 536; Galloway v. Galloway, 76 S.C. 524, 527, 57 S.E., 528. But the facts in this case are entirely different from the facts in the cited cases, for here the special difficulties, as the executrix has pointed out, are apparent, and were created by the testator and applicable laws.
In the first place, in so far as concerns the stock of the Kentucky Central Life Accident Insurance Company, as we have seen, the executrix was prohibited by the testator from making a distribution until after she received the dividends declared on January 19, 1943, more than one year and four months after testator's death. In the second place, this estate is liable for both State and Federal inheritance taxes, neither of which could be computed until after the debits were ascertained, and it is also liable for both 1942 and 1943 income taxes.
This estate was appraised by the local appraisers, appointed by the Probate Court, as having a value on the date of the death of testator of $156,415.69. That total did not include the share of a trust fund created under the will of Thomas O. West to be held for the benefit of Lillian West during her lifetime, and to be distributed among others at her death, among whom was J. Henry West, his estate receiving on February 10, 1943, his share, amounting to $2,027.77. Obviously, then, this estate was subject to the Federal estate tax, generally referred to as the Federal inheritance tax. Under existing laws and regulations, the fiduciaries of all estates so liable are allowed fifteen months after the death of a testator within which to file the return. That fifteen-months' period in this estate did not expire until December 11, 1942. Lillian West had died on October 31, 1942. The record shows that the executrix filed the return on December 3, 1943, which was timely. Certainly, there could have been no distribution of residue (Item 14) until that return had been filed, and since the return was filed within the time allowed by Federal law, there is no basis for holding that the estate should have been settled earlier.
In fact, the period of fifteen months allowed for filing the return is very conservative. Under existing Federal law, the executrix acting for the estate, had the option of having the tax based and computed either on the value of the property at the time of the testator's death, or on the value one year following death. Consequently the executrix, in acting properly in discharge of her duties, had to wait one year following death, and decide which of the dates would be selected for the purpose of ascertaining the value of the estate in computing the tax, and then prepare and file the return accordingly. But even after the return had been filed and the payment of the tax, as shown to be due thereon, the executrix could not, in justice to herself, have made an immediate distribution of the residue of the estate, for the Commissioner of Internal Revenue, under the law, determines the amount of taxes after the filing of the return. 26 U.S.C.A. Int. Rev. Code, 825. The failure to pay the tax so assessed not only renders the fiduciary liable, but subjects him to criminal prosecution. 26 U.S.C.A. Int. Rev. Code, 894. After filing the return, the fiduciary has the right to apply to be relieved of personal responsibility, but he is only entitled to such discharge one year thereafter, 26 U.S.C.A. Int. Rev. Code, 825.
Even at the time of the hearing in the Probate Court, it was admitted that such tax liability of this estate had not been fully determined. In an estate of this size with so much of the assets not having a definitely fixed value, it would obviously be unfair to force the executrix to make a distribution in advance of the determination of such liability, even if the Court has such authority.
It should be stated in connection with this phase of the matter that none of the facts are in dispute. Furthermore, the Court is glad to say that during the oral argument, the attorney for the respondents repeatedly stated that he wanted it understood that his clients were making no attack on the good faith and motives of the executrix.
The accounting of the executrix reports a balance on hand of $24,163.34, which, after paying any deficiency in the estate tax and income tax for 1942 and 1943, and any other costs of administration, will be distributable under Item 14 of the will. An analysis of the returns of the executrix show this amount to be made up from the following sources:
Residue of the corpus of the estate ......... $ 8,724.78 Share of trust fund under will of Thomas O. West, payable after death of Lillian West 2,027.77 1942 income ................................. 6,549.99 1943 income ................................. 6,860.80 ___________ Total ................................... $ 24,163.34 (NOTE: The 1943 income includes the 1943 dividend on the Kentucky Central Life and Accident Insurance Company stock, and also profit from sale of real estate made on January 11, 1943, of $674.75, and a parcel of real estate sold on February 18, 1943, at a profit of $1,131.21, the profit being based upon the excess of the appraised value.)It will be seen from the foregoing that even after the final determination of the Federal inheritance tax, so much of the residue of the estate as is comprised of 1942 and 1943 income cannot be distributed until these income tax liabilities have also been determined and settled.
It is equally clear that 1943 income and the amount received from the estate of Thomas O. West on February 10, 1943, and a portion of the 1942 income could not have been received within the one-year period from testator's death, but the Probate Court made no distinction thereabout.
As heretofore mentioned, the Probate Court passed an order, without notice to any of the legatees, directing that the stock in the Kentucky Central Life and Accident Insurance Company be distributed among all the legatees, with provision that the share which otherwise would have gone to Lillian West and five odd shares be held until the question now before the Court be determined, and the Probate Court states that in the event his decree is reversed, and the literal meaning of the language of the will is followed, even if one of the legatees who has received a share of stock should subsequently die, the share of such deceased person would have to be recovered and redistributed. Aside from the fact that no appeal has been taken from that order, and, presumably, all of the legatees have accepted their share of the stock under said order, I do not think the literal meaning of the phrase, "before the final settlement and distribution of my estate," justifies such a conclusion. I am of the opinion that the testator intended by the quoted phrase, that each legatee should be living and able to receive his or her legacy when distribution was ready to be made or should be made. It is not at all unusual for final distribution to be made in installments, and this case furnishes an excellent example. As the Probate Court stated, in its order of February 12, 1943, in view of the petition of the executrix that she was satisfied that the cash on hand was adequate to take care of any contingencies in the making of final settlement, that the stock in the Kentucky Central Life and Accident Insurance Company should be distributed at that time. And in the argument, attorneys for the appellant pointed out that the residue of the cash would, in all probability, be distributed in installments in the following manner: As soon as the Federal inheritance tax liability is determined, the executrix contemplates the distribution of the residue of the corpus, and that the executrix, in fact, had already distributed $500.00 thereof to each of the legatees under Item 14 of the will, excepting the share provided for Lillian West, which is being reserved, and that as soon as the 1942 income tax liability is determined, the balance of the income for that year could be distributed, and, finally, when the income tax liability for 1943 shall have been determined, the balance of that income would be distributed. It seems to me that such manner of distribution would effectually accomplish and carry out the intention of the testator.
While the attorneys for neither party have called to my attention any case of this State bearing directly upon the question here, the conclusion reached is in accordance with the decisions of other states. In the case of March v. March, 186 N.Y., 99, 78 N.E., 704, 705, 8 L.R.A. (N.S.), 180, the Court construed a will containing the following language: "4. That in the event of the death of any of my children before the conveyance and payment to him of the share of my estate herein given to him; or of either of my children whose share of my estate is held in trust, that my Executors convey, pay and assign the share of the one so dying to his or her issue absolutely, and if he or she shall leave no issue, then that they convey, pay, assign and divide such share or the proceeds thereof to and among my surviving children and to the issue of any deceased child, such issue to take by representation the part or share his, her or their parents would have been entitled to if living."
In that case, one of the children of the testator died during the course of the settlement of the estate. Part of his share had been paid to him prior to his death, but a part had not been paid over to him at the time of his death, and the Court was called upon to decide whether or not the balance of the deceased legatee's share passed under his will or under the will of his father. By a divided Court, it was held that the balance of the share of the deceased child did not pass under his will, but was to be disposed of under his father's will, the majority opinion being, in part, as follows:
"* * * the objections to a literal interpretation are that it would not only leave the testator's bounty subject to accident which he could in no manner foresee, but also empower those intrusted with the execution of his will to vary or change its provisions at their own pleasure. My answer to this is that a testator's bounty is always subject to accident until it reaches the possession of the person for whom it was intended. If personal property, it may be lost, stolen by thieves, or destroyed by fire; but none of these accidents could affect the intention of the testator or the construction that should be given to his will. Every person is liable to die, and no testator can foresee the time or manner of the death of a devisee or legatee. The death of such a person may change a testator's property from one channel into another, but how could this affect the original purpose or intent of any particular testator.
"Finally, it is urged that, if actual physical payment of the fund into the hands of the legatee is necessary, then the executor might, through litigation or otherwise, postpone the payment until after the death of the legatee and thus divert the legacy into another channel. But no one contends that actual physical payment of the fund into the hands of the legatee is necessary. That is not the question here presented. Of course, executors and administrators cannot change the rights of parties by improper litigation. No such question has been presented in this case. The executors and trustees have acted in good faith, have sold the real estate and converted it into money as soon as it was possible or proper for them to do so, and have fully performed their duty in that regard, as has been found and conceded in this case. If they had not performed their duty in that regard, Frank, during his lifetime, had his remedy to enforce such performance. The question in this case is: When did the fund become due and payable to Frank? When could he have maintained an action against the trustees to recover his share of the proceeds of the real estate? Under the will, they were required to sell at such times and on such terms as was proper. The fund derived from the sale was then to be distributed in the manner specified in the will. It was then that Frank's share became due and payable; then he was entitled to have it in possession; then he could have maintained an action to recover it. But when that time arrived, as we have seen, he had died, and under the terms of the will his right thereto passed to his only surviving child."
This case is of particular interest here, because the dissenting opinion contended that the time of death, referred to in the above-quoted provision of the will, meant the death of the testator, and, consequently, all children of the testator, who survived him, took vested interests; because the earlier authorities had generally held in such cases that the time of the death of testator was intended, unless a contrary intention had been "expressed in language so clear and positive as to leave no room for possible doubt." The minority opinion conceded that if it had been positively clear that the testator did not have reference to the time of his death, but to some time thereafter, then the language of the will would have been given its literal meaning. In the case at bar, it will be observed, the testator eliminated all possible doubt referred to in the minority opinion by providing that if any legatee should die "before the date of my death, or before the final settlement and distribution of my estate"; and, it is reasonable to assume that the attorney, in preparing this will, used the quoted language so as to remove all "possible doubt," referred to in the March case.
In Starr v. Willoughby, 218 Ill., 485, 75 N.E., 1029, 2 L.R.A. (N.S.), 623, the Court construed a will, providing, in part, as follows: "Third — As soon as practicable after my decease I direct that all other real estate owned by me not mentioned in the first and second clauses of this will be sold by my executors hereinafter named, and the proceeds thereof, together with the proceeds of any personal property that I may have, and any money, right and credit to me belonging, disposed of as follows: First, a sum not to exceed $1,500.00 to be invested in the purchase of a residence in Lebanon, Illinois, for the use of my wife, Jane Willoughby, so long as she lives and remains my widow; second, the balance to be divided among such of my children as may be living at that time, and surviving descendants of children, in case any of my children may have died leaving children or descendants of children then surviving and living at that time, the descendants of children to take per stirpes."
The testator died July 18, 1897. One of his children died on September 20, 1904, prior to distribution, and the Court held that the deceased child took nothing under the will that she could dispose of by her will.
In the Minnesota case of In re Jennrich's Estate, Ryan v. Schmidt, decided in 1936, 197 Minn., 162, 266 N.W., 461, 462, 267 N.W., 143, the Court was called upon to construe a will reading in part as follows: "12. In the event that any of my daughters die after my death without leaving issue, and before my estate is settled, so much of my estate coming to my said deceased daughter or daughters as shall not have been turned over to my said deceased daughter or daughters shall then descend to my children who shall survive such deceased daughter or daughters."
The testator had died on July 22, 1933, and the will was probated on August 25, 1933. Letters testamentary were issued on September 1, 1933, "and one year from that date was given for settling the estate." The executor filed his final accounting, in the proper court, and hearing was set for September 25, 1934. But at the request of the executor, the court continued the hearing until January 29, 1935. Minnie Ryan, one of the daughters, died January 14, 1935, and the court held that Minnie Ryan had taken nothing under the will, the court saying: "The rules guiding courts in the construction of wills are too well settled to justify discussion or restatement. The sole province of the court in all such cases, where the terms of the will are in doubt, is to ascertain and give effect to the intention of the testator. When such intention is found from the will, taken in all its parts, it is conclusive and must be applied."
In the Ohio case of Junk v. Jones, Ohio App., 44 N.E.2d 796, 797, decided in 1942, the Court construed the will of an attorney, John Logan, Esquire, which read in part, as follows: "3. On the decease of my wife, if she survives me, otherwise on my decease, the probate court shall appoint a competent administrator with the will annexed, who shall convert my property into money, without occasion to apply to any court for authority, and shall divide the proceeds into nine equal shares, and pay such shares to the following named if they be living, namely: My sister Anna E. Logan, my brother Frank P. Logan, my nephew, Paul M. Logan, my niece Helen Logan Jones, my nephew Bruce Logan, and also Charles P. Ballard, Constance Ballard, Logan R. Herbert and my cousin Minnie S. Williams. Should any of said legatees die prior to distribution as so provided, the share of such one or more so dying shall be and become part of the principal for division, and the principal be equally paid and distributed among the survivor of those named, except that in case of the prior death of Paul Logan, Helen Jones, Charles P. Ballard or Logan Herbert, leaving issue, the share of either so dying shall pass to and vest in such issue."
The wife of the testator survived, and then died on September 12, 1939, and an administrator with will annexed was appointed on September 19, 1939, who made a partial distribution on October 30, 1939, and another partial distribution on April 14, 1941. On June 3, 1941, one of the legatees. Annie E. Logan, died, and the question that the Court was called upon to decide was whether or not the balance of the share of Annie E. Logan passed under her will, or would it be distributed among the remaining legatees under the above-quoted provision. The Court again held that the balance of the share of Annie E. Logan was distributable among the surviving legatees of John Logan, the Court saying, in part: "Running through all the cases, not only in this state but in other jurisdictions, we find very frequent pronouncements in effect that the law favors the vesting of estates at the earliest possible moment, but we also find that the courts universally say that the primary object is always to ascertain the intent of the testator, and that the language used will be given its ordinary meaning, unless uncertain or ambiguous."
I am of the opinion that giving the words of the will here their ordinary and well-understood meaning, compels the conclusion that Lillian West having died prior to final settlement and distribution took nothing under the will of James Henry West.
Now, therefore, it is ordered, the provisions made for Lillian West, under the will of James Henry West, deceased, lapsed by reason of her death on October 31, 1942, and this case is remanded to the Probate Court for Newberry County, South Carolina, for further proceedings in accordance with this opinion.
Mr. Fred H. Dominick, of Newberry, S.C. Counsel for Appellants, cites: As to Lapse Of Interest Of A Beneficiary Who Dies More Than A Year After Her Testator's Will Was Probated. But Before Distribution Of Estate: 69 S.C. 543, at p. 544, 48 S.E., 536; 76 S.C. 524, 57 S.E., 528.
Messrs. Blease Griffith, of Newberry S.C. Counsel for Respondent, cite: As To Lapse Of Interest Of A Beneficiary Who Dies More Than A Year After Her Testator's Will Was Probated, But Before Distribution Of Estate: 8 L.R.A. (N.S.), 180, 186 N.Y., 99, 78 N.E., 704. As to Res Judicata: 132 S.C. 288, 128 S.E., 705; 188 S.C. 274, 198 S.E., 848; 196 S.C. 51, 12 S.E.2d 545; 182 S.C. 510, 189 S.E., 885; 71 S.C. 512, 51 S.E., 257.
Counsel for Appellant, in Reply, cites: As to Lapse Of Interest Of Beneficiary Who Dies More Than Year After Probate Of Testator's Will: Rice, 54, 24 S.C.L., 23; 1 Treadway Const., 106, 6 S.C.L., 33; 3 Rich., 418, 37 S.C. L., 159; 1 S.C. 256; 36 S.C. 397; 2 N. McC., 586, 12 S.C.L., 234; 87 S.C. 342, 349, 69 S.E., 516; 94 S.C. 3, 77 S.E., 716.
November 30, 1943.
This Court is satisfied with the order of Honorable J. Henry Johnson, presiding Circuit Judge, from which this appeal is taken, and hereby directs that said order be reported as the opinion of the Court on the main issue.
Appellants' third exception is: "That his Honor erred in not holding that the decree of the Probate Court was res judicata as to all legatees under the will of James Henry West, deceased, for the reason that none of them appealed from the said decree except the said Carabel West Youmans, individually, and as executrix of the last will and testament of James Henry West, deceased."
On February 12, 1943, the Probate Judge for Newberry County issued his order directing the respondent, as executrix, to distribute all of the shares of stock of Kentucky Central Life and Accident Insurance Company, of Anchorage, Kentucky, to the persons named as legatees under Item 12 of the will of James Henry West, deceased, with the exception of the 111 shares to which Lillian West, had she been living, would have been entitled to receive; and five odd shares. Thereupon, the respondent, as executrix, filed her petition in the Probate Court asking the construction and interpretation of the will of James Henry West, deseased, and all of the interested legatees under the will were given notice of the hearing to be had thereon, all of which is set out in the order of Judge Johnson.
The appeal from the order of the Probate Judge was by the respondent, individually, and as executrix of the last will and testament of James Henry West, deceased.
When the case on appeal in the Circuit Court was argued, no question was made by the appellants of the fact that the several legatees, except the respondent, as an individual, amongst whom the shares of stock would be divided, should it be decided that the stock did not pass under the will to Lillian West, had not served notice of appeal from the order of the Probate Judge, and therefore the issue now attempted to be raised in this Court was not passed upon by the Circuit Court. But, the appellants here contend that it is a question of jurisdiction, or lack of jurisdiction, and can be raised "at any time during the progress of the case, even for the first time in the Supreme Court."
The appellants apparently lose sight of the fact that the respondent occupies a dual position, to wit, as an individual and as the representative of the estate of James Henry West; and as such representative of the said estate, has the possession and the legal title to the share claimed by appellants as the representatives of the estate of Lillian West. Moreover, it is the duty of respondent, as executrix, to see that the will of her testator is carried out as he intended it. So the Court has jurisdiction of claimants and the estate against which the claim is being made.
As aforesaid, when the appeal from the order of the Probate Court was argued in the Circuit Court, no question was made that the individual legatees who would be affected by the decision in that Court had not appealed. And when the Circuit Court decided that these legatees would take under the will their distributive share of the property which had been bequeathed to Lillian West under certain conditions hereinbefore stated, no notice of appeal from the order of the Circuit Court was served upon these legatees, the appellants here treating the respondent as the representative of the estate of James Henry West.
This exception is also overruled.
Judgment affirmed.
MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES, and MESSRS. ACTING ASSOCIATE JUSTICES WM. H. GRIMBALL and L.D. LIDE.