"The opinion of the court was delivered by
Mr. Chiep Justice McIver.
The report of the referee and the decree of the Circuit Judge, which will be embraced in the report of this case, so fully and clearly set forth the facts, and present the question involved, as to supercede the necessit}'' of any further statement here.
The main question is as to the proper construction of the following clause in the will of the late Dr. D. Reese Gregg: “Sixth. I devise and bequeath to my son, Reese C. Gregg, all the residue of my eatate, both real and personal, and to his care the protection and support of my daughter, Catherine W. Gregg, during her natural life.” The cardinal rule in the construction of a will being the intention of the’testator, the practical inquiry in this case is, whether the testator intended, by this clause, to fix upon the residue of his estate, devised and bequeathed to his son, Reese, which appears to have been much the larger portion of his estate, a charge for the support of his daughter, Catherine, during her natural life, or whether his intention was simply to enjoin upon his son a mere moral obligation to support the daughter.
1 In seeking for the intention of a testator, we must look to the words>he has used as expressive of his intention; but we may read those words in the light of the surrounding circumstances, for the very obvious reason that it must be assumed that the testator used the words which he has employed, in the light of the circumstances by which he was surrounded at the time be used the words which are to be construed. While, therefore, we are not at liberty to resort to any conjecture as to what the testator intended to say, or what a court may think he ought to have said, but must look to what he has said, yet we may look to the circumstances under which he did say what he has said, with a view to determine what he meant by the expression which he has used. Especially is this the case when the language which he used is doubtful or ambiguous. As is said by Marshall, C. J., in Smith v. Bell, 6 Peters, at page 75: “The first and greatest rule in the exposition of [181] wills, to which all other rales must bend, is that the intention of the testator,' expressed in his will, shall prevail, provided it be consistent with the rules of law. Doug., 302; 1 Black, 672. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be ‘the legal declaration of a man’s intentions, which he wills to be performed after his death.’ 2 Black Com., 499. ’ These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law. In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection existing between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words, and ascertaining the meaning in which the testator used them.”
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"The opinion of the court was delivered by
Mr. Chiep Justice McIver.
The report of the referee and the decree of the Circuit Judge, which will be embraced in the report of this case, so fully and clearly set forth the facts, and present the question involved, as to supercede the necessit}'' of any further statement here.
The main question is as to the proper construction of the following clause in the will of the late Dr. D. Reese Gregg: “Sixth. I devise and bequeath to my son, Reese C. Gregg, all the residue of my eatate, both real and personal, and to his care the protection and support of my daughter, Catherine W. Gregg, during her natural life.” The cardinal rule in the construction of a will being the intention of the’testator, the practical inquiry in this case is, whether the testator intended, by this clause, to fix upon the residue of his estate, devised and bequeathed to his son, Reese, which appears to have been much the larger portion of his estate, a charge for the support of his daughter, Catherine, during her natural life, or whether his intention was simply to enjoin upon his son a mere moral obligation to support the daughter.
1 In seeking for the intention of a testator, we must look to the words>he has used as expressive of his intention; but we may read those words in the light of the surrounding circumstances, for the very obvious reason that it must be assumed that the testator used the words which he has employed, in the light of the circumstances by which he was surrounded at the time be used the words which are to be construed. While, therefore, we are not at liberty to resort to any conjecture as to what the testator intended to say, or what a court may think he ought to have said, but must look to what he has said, yet we may look to the circumstances under which he did say what he has said, with a view to determine what he meant by the expression which he has used. Especially is this the case when the language which he used is doubtful or ambiguous. As is said by Marshall, C. J., in Smith v. Bell, 6 Peters, at page 75: “The first and greatest rule in the exposition of [181] wills, to which all other rales must bend, is that the intention of the testator,' expressed in his will, shall prevail, provided it be consistent with the rules of law. Doug., 302; 1 Black, 672. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be ‘the legal declaration of a man’s intentions, which he wills to be performed after his death.’ 2 Black Com., 499. ’ These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law. In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection existing between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words, and ascertaining the meaning in which the testator used them.”
2 Let us then proceed to inquire what the testator intended by the' words which he has used, read in the light of the circumstances by which he was surrounded at the time he used those words; for it is quite certain that those words do not very clearly express what the testator really did intend. It is very manifest that the testator intended to make provision for his wife and all of his children except one, who, lie takes care to say in his will, has already been fully provided for, thereby clearly showing that he did not intend to disinherit any one of his children; least of all should an intention be attributed to him to disinherit his daughter, Catherine, who appears to have been a woman frail both in bod)' and mind; and, therefore, most likely to excite the sympathy and to call for the protecting care of her father during her life, and some certain provision for her support after his death. When, therefore, the testator, after having made such provision as he deemed proper for the other members of his family, gave the residue of his estate, which appears to have been much the larger [182] part of his estate, to his son, Reese, what better or more natural provision could he have made for this helpless daughter, who was unfit to manage property, than to charge this largest portion of his estate, thus given to his son, with the support of his frail and dependeut sister? It is quite certain that the testator intended to make some provision for his daughter, Catherine, and this provision having been made in his will, which, as above defined, is “the legal declaration of a man’s intentions which he wills to be performed after his death,” it must be assumed, in the absence of any language implying a different intent, that the provision thus made was a legal provision and implied a legal obligation for its performance, and hence enforcible by law. It is true, that a testator may, by using language appropriate for such purpose, indicate an intent to create a mere moral and not a legal obligation, to use property devised and bequeathed in a certain way or for a certain purpose, leaving it to the discretion of the object of his bounty whether he shall fulfill the obligation, as in the cases of Lesesne v. Witte, 5 S. C., 450; McCreary v. Burns, 17 S. C., 45; Rowland v. Rowland, 29 S. C., 54; Houze v. Baber, 29 S. C., 466, and Arnold v. Arnold, 41 S. C., 291. But in the present case the testator used no such language— no words tending to show that the support of the daughter, Catherine, was to be provided for at the discretion of the devisee, Reese C. Gregg — no words expressive of a mere hope or wish or admonition that he should provide for such support. On the contrary, the clause contains words, which negative the idea that the testator intended to impose a mere personal obligation upon the son, which he would be under a moral but not a legal obligation to perform; for the provision is for the support of Catherine “during her natural lifef and, as was well argued by counsel for respondent, such a provision necessarily implied a legal obligation, the performance of which was intended to be secured by making it a charge upon the property devised and bequeathed. And if the clause should be construed as [183] creating merely a personal obligation, which Reese would be bound only morally and not legally to perform, then upon his death such obligation would cease, and if his sister survived him, the provision for her support would become xxtterly nugatory. Accordingly, we find that in Sands v. Champlin, 1 Story, 376, as quoted in Thayer v. Finnegan, 134 Mass., 62 (reported also in 45 Am. Rep., 285), that Mr. Justice Story lays peculiar stress oxx the circumstance, that the testator was making a provision for his widow, to be furnished annually. “His intention,” he says, “was to have a fund for the security of the payment durante viduitate, which can only be by construing the will as making the legacies a charge on the estate.” So here the provision for the support of Catherine was "■during her natural life," and that could oixly be secxxred by coxistrxxing the will as making a charge on the estate devised and bequeathed to the son. We agree, therefore, with the referee axxd the Circuit Judge in the construction which they have placed upon the sixth clause of the will, which the court is called upon to construe.
3 As to the other qxxestion upon which the referee and the Circuit Jxxdge differ, we agree with the latter. If, as we have seen, under a proper construction of the sixth clause of the will, the devisee, Reese C. Gregg, took the land in question burdened with a charge for the support of Catherine W. Gregg, it was practically the same thing as if Reese C. Gregg held all the property devised and bequeathed to him, subject to a mortgage to Catherine to secure her support, which has been ascertained, both by the referee and the Circuit Judge, to amount to the sum of $220 annually, covering all of the property embraced in such devise and bequest; and, if so, upon the failure to pay the amount so secured, she might enforce her so-called mortgage upon any particular tract of laud which it covered, leaving the owner of such tract to enforce such equities, for contribution or otherwise, agaixist the owners of the other property, subject to such charge in such way as he may be advised. It may be that if all those who own [184] or hold encumbrances upon the other property were parties before the court, the equities of all parties might be adjusted under the present action; but this we do not understand to be the fact, and hence we see no reason why Catherine W. Gregg should be delayed in enforcing her rights against the parties who are now before the court.
The appeal of the Imperial Fertilizer Company raises two additional points: 1st. That the Circuit Judge erred in not vacating the order permitting Catherine W. Gregg to amend her answer. 2d. That he erred in not holding that the Imperial Fertilizer Company could not be affected in any way by the agreement between Reese C. Gregg and his sister, of which it had no notice, either actual or constructive. As to the first point, the referee reports that the order was made by consent, and there is nothing in the “Case” controverting that statement; and this effectually disposes of that point. As to the second point, we do not understand that the Circuit Judge bases his decree upon the agreement referred to, unless, possibly, so much of his decree as fixes the amount due the defendant, Catherine, for her support; but as the Circuit Judge also found as matter of fact, to which finding there is no exception, that, under the evidence, the amount mentioned in the agreement was reasonable and proper, we do not think there is anything in this point. Indeed, it appears from the “Case” that the agreement referred to was received in evidence without objection, and it is too late to object now.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.