May v. Riley

305 S.E.2d 77, 279 S.C. 248, 1983 S.C. LEXIS 326

• Court: Supreme Court of South Carolina
• Decided: July 13, 1983
• Docket: 21954
• Status: Published

Opinions

Ness, Justice:

This is an action to construe the will of Abner C. Stockman. The trial judge held respopdents were entitled to the property. We reverse.

Abner Stockman died in 1924 survived by four children, one of whom was Mary E. Hunter. Stockman devised Mary a life estate in one-fourth of his residuary estate; upon her death, the property was to be equally divided among her children for their lives. Upon their deaths, the portion set aside to each of them was to be equally divided among their respective children.

Mary had three children: Carlisle Hunter, Willie Hunter Riley, and Lillian Hunter Snipes. Carlisle predeceased Mary and was survived by two children, the appellants in this action. Upon Mary’s death in 1946, the property which had comprised her life estate was divided one-third each to her children Willie and Lillian for life, and one-sixth to each of Carlisle’s children in fee simple.

Willie died February 6,1979, survived by two adopted children. The court ruled the adopted children were not entitled to the one-third which had comprised Willie’s life estate, and this ruling was not appealed. The dispute centers on whether the property should be distributed through Willie’s then only surviving sibling, Lillian, whose children are the respondents, or should be divided between Lillian and Carlisle’s children.

The pertinent provisions of the will are:

ITEM TEN:

If any of my grandchildren should die leaving no child or children, then the share of such grandchild shall be turned over by the said Trustees to his or her surviving brothers and sisters, under all of the terms, conditions and limitations hereinabove named and applicable to them.

ITEM ELEVEN:

The child or children of any of my children, or the grandchild or grandchildren of any of my children, shall represent his or her parent or parents under the terms of this Will, in the event of the parent’s death before the provisions made for such parent or parents shall take effect.

The trial judge concluded Lillian was entitled to Willie’s entire share. We disagree.

In an equity action tried by a judge without a reference, we may find the facts in accordance with our own view of the preponderance of the evidence. Richtex Corporation v. Pilkington, S. C., 300 S. E. (2d) 728 (1983); Mims v. Edgefield County Water and Sewer Authority, S. C., 299 S. E. (2d) 484 (1983).

The cardinal rule of will construction is that the testator’s intent should be ascertained and given effect. Albergotti, et al. v. Summers, et al., 205 S. C. 179, 31 S. E. (2d) 129 (1944). In determining the testator’s intent, the Court should read the will as a whole and attempt to harmonize all its provisions. Hays, et al. v. Adair, et al, 267 S. C. 291, 227 S. E. (2d) 665 (1976); Wates, et al. v. Fairfield Forest Products Company, Inc., 210 S. C. 319, 42 S. E. (2d) 529 (1947).

Reading the will as a whole, it is our view the testator intended his great-grandchildren to take the deceased grandchild’s share by representation. ITEM TEN of the will provided for the shares of childless grandchildren to be distributed to the grandchild’s surviving siblings; however, we cannot ignore ITEM ELEVEN, which provides that the child of any deceased grandchild shall represent the grandchild under the terms of the will. We conclude Stockman intended Carlisle’s children to take the share Carlisle would have taken had he survived. Accordingly, we reverse.

Reversed.

Littlejohn and Harwell, JJ., concur. Lewis, C. J., and Gregory, J., dissent.