10779 | S.C. | Dec 19, 1921
Lead Opinion
December 19, 1921. The opinion of the Court was delivered by Action by the executors of the will of W.H. Kennedy, deceased, for the purpose of obtaining a judicial construction of the will, particularly with reference to the interest and rights of the defendant, W.K. Rogers, a grandson of the testator.
The testator left surviving him three sons, A.M. Kennedy, Q.A. Kennedy, and J.E. Kennedy, a daughter, Marie K. Owens, and a grandson, W.K. Rogers, a son of a predeceased daughter, Mattie L.K. Rogers. All of these parties are married and have living children except the defendant, W.K. Rogers, who has never married.
He directed in his will that his property, after the payment of debts, should go to his children, share and share alike, the issue of a predeceased child to take per stirpes the parent's share. In a codicil he provided that if his *118 grandson, W.K. Rogers, should die without heirs of his body, his share should revert to the other heirs above named, share and share alike, but that, if he should leave said lawfully begotten heirs of his body, the codicil should be of no effect.
He appointed his three sons above named executors of the will, and accompanied the appointment with this clause:
"I hereby authorize them to carry this will into effect by taking such steps at such times and places as in their discretion may be necessary. My express will is, that I hereby order and appoint, that if any differences shall arise or happen concerning anything contained in this will and testament, that no suit shall be brought concerning same; but the same shall be referred wholly to the award of my executors herein named, and what they shall order, direct and determine therein shall be binding and conclusive on all persons concerned."
The executors, with great propriety (considering their personal interest in the matter), have not attempted to conclude the defendant by their interpretation of the will under a possible authority in the clause last above quoted, but have submitted the construction of the will to the Court, at the same time contending (their sister, Mrs. Owens, joining in the contention) that —
"The true intent and purpose of the will is that the said William Kennedy Rogers does not obtain or take an absolute estate in said portion or part of the estate, but that he would only have a usufruct in said portion or part during his life, or at least until he has issue, which is not the case, and if he should die without issue or bodily heirs, his portion or part should revert to the other legatees or devisees named in the will, or, if they be dead, to their children then living at the time of such reversion."
The case was tried by Judge Rice upon the pleadings, to which was appended a copy of the will. In a decree filed by him the contention of the executors and Mrs. Owens was *119 sustained, and a certain accounting was ordered to be made by the executors for the purpose of ascertaining the share to which W.K. Rogers might be entitled, and holding it until the possibility of a defeasance had disappeared. His decree will be reported. The defendant has appealed from that decree, and practically (although there are five exceptions) relies upon this proposition: That the testator intended that W.K. Rogers should take a fee defeasible title to all such property as should be awarded to him, in a fair distribution of the estate, with the right to the immediate possession thereof, to continue until his estate should determine by the happening of the specific condition in the devise.
The original will, unaffected by the codicil, gave W. K. Rogers an absolute title to the share which his mother would have received if alive. The effect of the codicil is simply to convert that absolute estate into an estate defeasible upon the happening of the specific event. There is nothing in the codicil, effecting this conversion, which creates a trust in the executors, such as they will necessarily have if their contention be sustained. The provision in the original will (which contained the absolute devise to W.K. Rogers), giving them the authority to carry out the provision of the will was entirely superfluous, and the provision in referring to settling disputes related only to administrative matters. Neither could have conferred authority upon the executors to make vital changes in the disposition of the estate. There is nothing in either the will or the codicil that alters the rule that the tenant of a defeasible estate is entitled to the possession of it until the defeasance shall have occurred.
The executors should be directed to make a full accounting of their receipts and disbursements, and pay over to the defendant his share under the will. In reference to the real estate, if the parties who are all of age cannot agree upon a division, such orders should be taken in the Court below as will effectuate a partition. *120
I think that the decree should be reversed, and the cause remanded to the Circuit Court for the purpose of carrying into effect the conclusions herein announced.
This being the opinion of a majority of the Court, it is so ordered.
JUSTICES WATTS and FRASER concur.
Dissenting Opinion
The following statement appears in the record:
"This suit was commenced by service of summons and complaint December 22, 1920, and was brought by the executors of the will of W.H. Kennedy, together with the respondent, Owens, a daughter, devisee, and legatee of W. H. Kennedy, deceased, against the appellant, a grandson, and devisee and legatee of the testator, for a consideration of the last will and testament of W.H. Kennedy, deceased.
"The matter was heard by consent by Judge Rice at Chambers, upon the pleadings and the will, without the taking of any testimony, and resulted in his decree, dated July 2, 1921, hereinafter printed, from which due notice of intention to appeal to the Supreme Court was given upon grounds of exception hereinafter printed."
The appellant's attorneys in their argument make this statement:
"His Honor held, as was conceded by all parties, that appellant takes a fee defeasible estate; but his construe went further and held that, on account of his construction and the construction of the executors of item 3 of the will, the fee defeasible estate of the appellant is subject to the possession and control of the executors under the full powers given to them in the third item of the will, and that the appellant is entitled only to the income from both the real and personal estate which may constitute his portion and is not entitled to actual possession of the same.
"The judgment of the Court that the executors of this will shall have actual possession and control of the property *121 of appellant is the cause of this appeal. This is the only point for the consideration of the Court, although, in order to point out the alleged errors in the reasoning of the Court below, we have found it necessary to present to this Court five exceptions."
For the reasons assigned by his Honor, the Circuit Judge, I am of the opinion that the exceptions raising the said question should be overruled and the judgment of the Circuit Court should be affirmed.