Johnson v. Johnson

26 S.E. 722, 48 S.C. 408, 1897 S.C. LEXIS 115

Opinion

The opinion of the Court was delivered by

Mr. Justice Pope.

.John Johnson, of Aiken Count}1', in this State, departed this life on the 11th day of December, 1893, leaving his last will and testament, of which the following isa copy: “I, John Johnson, of Aiken County, S. C., a farmer, make this my last will and testament: I give, devise and bequeath my estate and property, real and personal, as follows, that is to say: I give my homestead, containing 700 acres, to my wife, Dydia Johnson, and if she ever wants to leave it, she is to let A. E. Johnson have the place in trust for his children. I also give and bequeath to my wife, Lydia Johnson, all the household and kitchen furniture, including the iron safe, also one buggy and harness, one mare mule five years old, five head of cattle and five head qf hogs of her own choice, also all the contents of barn, store house, and smoke house, one stack of potatoes. I also bequeath to my wife $200 annually for her support, to be paid out of bonds, mortgages or other moneys belonging to my estate. I appoint Lydia Johnson and A. E. Johnson executors of this my will.” The said Lydia Johnson and A. E. Johnson were in doubt as to the proper construction of this will. This action was brought by them against all the heirs of their testator, as well as the children of A. E. Johnson, and came on for trial before his Honor, Judge Benet, at the fall term, 1896, of the Court of Common Pleas for Aiken County. By his decree he held that the widow of testator, Lydia Johnson, took the 700 acres devised to her in the will in fee simple, unaffected by the words therein: “and if she ever wants to leave the place, she is to let A. E. Johnson have the place in trust for his children.” Secondly. He held that the widow, Lydia Johnson, was not entitled to receive the six bales of cotton found at testator’s death under the building known as a buggy shed, such building not being entitled to be called a “barn,” as set out in the will. Thirdly. He held that the annuity of $200, directed to be paid to Lydia Johnson, the widow, was intended by the testator to “be paid only out of such bonds, mortgages or choses in action, or moneys which he left at the time of his death, or any moneys that may arise from said bonds or mortgages or choses in action.” From that part of the decree relating to the 700 acres of land the defendants have appealed, and from the second and third findings the plaintiff, Lydia Johnson, has appealed. We will dispose of these questions in .the order in which they were considered by the Circuit Judge, but think the decree and the exceptions thereto-should be reported.

1 First. It is very evident, from the language used by the testator as to this devise, so far as the words, “and if she ever wants to leave it, she is to let A. E. Johnson have the place in trust for his children,” are concerned, that whatever condition is here expressed or implied is to occur during the lifetime of the said Eydia. It expressly says, “if she ever wants to leave it,” thereby limiting their meaning to the wish of the said Eydia, and to no other incident. These are the only words of the will which refer to this matter. The children of A. E. Johnson are not heirs at law of the testator. It is not expressed in these words whether it is that a sale is to be made of these lands to A. E. Johnson, in trust for his children, or whether it is to be a gift or devise to them. We are inclined to the opinion that the testator intended a fee simple estate in these lands to his widow, but, in the event she determined to leave there as a home, it is recommended to her that a preference should be given to the father of these children in the purchase of the same as their trustee. It is conceded in the argument that, under the laws of this State, a devise of lands to A., without any restrictive words in the will, carries the fee to A. therein. See section 1995 of our General Statutes, which is in these words: “No words of limitation shall be necessary to convey an estate in fee simple by devise, but every gift of land by devise shall be considered as a gift in fee simple, unless such a construction be inconsistent with the will of the testator, expressed or implied.” We cannot find any evidence of any other intention of the testator in his will which is inconsistent with the foregoing views, and we, therefore, overrule this exception of the defendants.

2 Mrs. Eydia Johnson appeals from the decree in regard to the six bales of cotton. We have carefully examined the evidence which was submitted in the Circuit Court. The word “barn,” in the ordinary acceptation of that term, woiild hardly be broad enough to include a house biiilt as a shelter for buggies, although it was also used to store rough food for cattle, such as peas, pea vines, &c. The word “barn,” as used by the testator, must be construed, we think, to mean a building whose primary use or adaptation was to the storing away of corn, wheat, other grain, and rough food. It would not destroy this meaning that sheds were attached to the building, where ■ wagons, &c., were kept out of the weather. But a house built, as a primary use thereof, for the shelter of buggies or carriages, cannot be held to be a “barn.” We think the exception is not well taken.

3 Mrs. Johnson, as her second ground of appeal, complains that the Circuit Judge erred in construing the language of the will to restrict her annuity of $200 to the bonds, mortgages, other choses in action, and money, or the proceeds of the bonds, mortgages, and other choses in action when collected, and other money on hand or left by the testator. The testator must be understood to mean what he says. By his will he limits this annuity to be derived from the sources enumerated in the will, as found by the Circuit Judge. Where the meaning of words is evident, construction cannot make them any plainer. Indeed, it is unwise to attempt to explain what is already clear. So we think of the language of the testator as to this annuity, and, therefore, we overrule this exception.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.