37 S.C. 161 | S.C. | 1892
The opinion of the court was delivered fey
This was a proceeding for the settlement of the estate of Jane Taylor, originally commenced in the Court of Probate, and carried thence, by appeal, to the Court of Common Pleas. It seems that Jane Taylor, who was a married woman up to the time of her death, being entitled, as we must presume, to a separate estate, departed this life in December, 1888, having first duly made and executed her last will and testament, a copy of which is set out in the “Case,” and which, together with the decree of the Circuit Judge, should be embraced in the report of this case. At hex death the testatrix left surviving her, her husband, James Taylor, and the eight children named in the will, all of whom are parties to this proceeding. Prior to her death the testatrix had,' by deed, conveyed to each of her children, except the appel- . lants, Hannah Kirkpatrick and Annie Taylor, a tract of land, which was valued by three appraisers appointed by the testatrix. After her death two of said appraisers (the third being dead), with another, appointed by the executor, put a valuation upon the land devised to the appellants, Hannah Kirkpatrick and Annie Taylor. In the course of the proceedings in the Court of Probate, Annie Taylor set up a claim for set-vices rendered the testatrix during her lifetime, as “cook, milker, and housekeeper,” which was rejected by the judge of probate, who rendered his decree to that effect, and placing the construction upou the terms of the will as contended for by the respondents. Upon appeal to the Circuit Court, the
Thesegroundspresentthefollowingquestious: 1st. Whether the Circuit Judge erred in proceeding to decide the question as to the validity of the claim of Annie Taylor after she had demanded a trial by jury. 2d. Whether there was error in rejecting said claim. 3d. The general question as to the proper construction of the will, which will be stated more specifically in the progress of the discussion.
Inasmuch as the testatrix died before making the deeds which she contemplated making to the appellants, it is very obvious that the alternative provision which she made for them, in the event of her death before making the deeds, took effect, and hence that the appellants became entitled to their lands as devisees and not as grantees of the testatrix, while all the other children took their lands as grantees and notas devisees. Now, as the doctrine of advancements has no application in a case of testacy (Manning v. Manning, 12 Rich. Eq., 428), it is very clear that a devise cannot be treated as an advancement, unless the testator, as in the case just cited, “has made the law of his own property” in such terms as shows his intention' that such doctrine shall apply. It is very certain that the testatrix here, has not expressly declared any such intention, so far as the devises to the appellants are concerned; and, therefore, the practical inquiry is whether such an intention should be implied from the language used by the testatrix, read in the light of the surrounding circumstances.
It will be observed that the testatrix, after providing in the second and third clauses of her will for the sale of the real estate therein mentioned, and for the sale and conversion into money of all of her personal property, proceeds, in the fourth clause, to direct that the proceeds of suchsales shall be divided equally amongst all of her children; and if the will had stopped there, then there would be no doubt that each child would be entitled to an equal share of the proceeds of such sales, without regard to the value of the land previously given to some of the children, or to that in a subsequent clause devised to the others. But the will does not stop there, and, on the contrary, in the second paragraph of the fourth clause, the testatrix goes on to declare, not simply her desire that all her children shall be made equal, but explains how such equality is to be effected, using for that purpose these words : “In making the said division” (meaning, necessarily, not the division of all her property, but simply that which, she had just directed to be divided, to wit, the proceeds of the sales), “all
If the testatrix had contented herself with simply expressing a desire that all her children should be made equal, then, possibly, there might be room for the contention that she intended that all of her children should share equally in all of her property ; but she qualifies the expression of this general desire by adding explanatory words, which, while clearly including the children who had received deeds, with equal clearness do not include those who had not then, and, in fact, never afterwards, received deeds for land. Indeed, they cannot be included without doing violence to the language used by the testatrix; for to include them it would be necessary to read the word “heretofore” in a sense exactly the opposite of that which it properly bears, and to ignore entirely the latter part of the second paragraph of the fourth clause, directing- how the lands previously conveyed to some of the children are to be accounted for, viz., “in accordance with the terms of the deeds of conveyance to them respectively;” for, as there never were any deeds made to the appellants, it is quite certain that they could not be required to account, in accordance with the terms of deeds which never had any existence.
Now, let us consider the terms of the fifth clause. "While it is quite true that it contains words showing that the testatrix intended to convey the land therein mentioned to the appellants “by deed as to others,” yet it is equally true that she abandoned that intention, or, at least, failed to carry it into effect, and, therefore, the alternative provision, by devise, took
The judgment of this court is, that the judgment of the Circuit Court, iu so far as it tejects the claim of Annie Taylor, be affirmed; but in so far as it construes the will as requiring the appellants to account for the value of the land deyised to them, it be reversed, and that the case be remanded to the Circuit Court, for the jmrpose 0f carrying out the views herein announced.