Key v. Weathersbee

¶1The opinion of the court was delivered by

¶2The questions raised by this appeal involve the proper construction of the will of the.late Mrs. Bethaney Moore, with the two codicils thereto, as affected *421by the provisions of the act of 1865, incorporated in the Revised Statutes of 1893 as section 1991. For a full understanding of the facts of the case, about which there is no dispute, and of the questions presented by the appeal, reference must be had to the decree of his honor, Judge Norton, and the exceptions thereto, all of which should be incorporated in the report of this case, care being taken to correct the error in the decree, giving the section of the Revised Statutes referred to as section 1974 instead of 1991, and the omission in the latter part of the quotation from that section, arising, doubtless, from a misprint.

¶3It will be sufficient to state here that the testatrix by her will specifically devised certain real estate to the defendants, Charlee Ann Weathersbee and her husband, Floyd W. Weathersbee, for their joint lives, and to the survivor of them during the life of such survivor, with remainder to the other three defendants, Bessie, Jane, and James Moore Weathersbee; but as it is conceded that the said Floyd W. Weathersbee was a subscribing witness to the will, as well as to the two codicils, the question is as to the effect of this conceded fact upon the provisions of the will just stated, under the provisions of section 1991 of the Revised Statutes above referred to. That section reads as follows: “No subscribing witnesses to any will, testament or codiqil shall be held incompetent to attest or prove the same by reason of any devise, legacy or bequest therein in favor of such witness, or the husband or wife of such witness, or by reason of any appointment therein of such witness, or the husband or wife of such witness, to any office, trust or duty; and such devise, legacy or bequest shall be valid and effectual, if otherwise so, except so far as the property, estate or interest so devised or bequeathed shall exceed in value any property, estate or interest to which such witness, or the husband or wife of such witness, would be entitled upon the failure to establish such will, testament or codicil, but to the extent of such excess, the said devise, legacy or bequest shall be null and void, and such appointment shall be valid, if otherwise so, but the person or persons so appointed shall not, in such case, be entitled by law to take or receive any commissions or other compensation on account thereof.”

¶4*422The Circuit Judge held that the effect of this statutory provision was to destroy or forfeit all the interest that Floyd W. Weathersbee would otherwise have taken under the will, and to cut down the interest of Charlee Ann to an amount not exceeding in value the interest which she would have taken as heir at law if there had been no will, which, it is conceded, would have been one twenty-fifth part of the estate. And he further held that this did not destroy the interest in remainder intended for the children of Charlee Ann, but that the effect was simply to accelerate the remainders, which, therefore, took effect at once. The appellants, on the other hand, contend that the precedent life estate having been destroyed, the remainders were defeated, and the estate of the testatrix became divisible amongst the heirs at law as intestate property, and the main question in the case is, which of these two views is correct.

¶51 Before proceeding to the consideration of that question, it may not be amiss to say, simply to avoid committing the court upon the point, that it may, possibly, be open to question whether the Circuit Judge was right in holding that the effect of the statute was to destroy all of the interest of the husband, Floyd W. Weathersbee, in the'estate intended to be devised to him, inasmuch as the language of the statute is not that a devise to a witness shall be void to the extent of its excess in value over the interest which “such witness” would take had there been no will, but the language is, “to which such witness, or the husband or wife of such witness, would be entitled upon the failure to establish such will.” Now, as the wife of the witness, Floyd W. Weathersbee, would, confessedly, be entitled, upon the failure to establish the will, to one twenty-fifth of the whole estate, it is, at least, open to question whether the interest intended to be given to Floyd W. Weathersbee by the will, is entirely defeated by the statute, or only to the extent of its excess in value over the one twenty-fifth part of the estate. But as there is no exception to the ruling of the Circuit Judge as to this particular point, andas it is not really necessary or even important to the solution of the question which we are called upon to decide, w'e do not wish to be regarded as deciding or even expressing any opinion distinctly upon that question.

¶6*4232 Recurring, then, to the main question, we think it is satisfactorily determined in favor of the view taken by the Circuit Judge by the case of Jull v. Jacobs, L. R., 3 Chan. Div., 709, cited both by the judge and the counsel for respondents. That case is not distinguishable from the present, for in that case the testator devised both real and personal property to his daughter, “during her lifetime, and after her decease the property to be equally divided between her children on their becoming of age,” and it was held that, in respect to the real estate, the gift to the children was strictly a vested remainder; that the construction as to the personalty followed the rule as to the realty, and the gift to the daughter being void, on account of her having attested the will, the gift to the children was accelerated and took effect immediately. Malins, Y. C., in delivering the opinion of the court, after showing that the clause of the will above recited created'a vested remainder in the children, proceeded as follows: “But then comes the question whether the Wills Act, by taking away the life estate of the daughter, causes an intestacy during her life so as to carry the property to the heir at law, or accelerate the remainder. It is perfectly clear, in the first place, that the children are postponed to the mother simply because the mother is to have the property for her life, but if the mother cannot have the property for her life, why are the children to be postponed? The reason of their postponement altogether ceases; they are not to have it until after her death, because the testator assumed that she would have it during her life. But he was ignorant of the law that if he called in his daughter tobe an attesting witness, the very gift he made her would absolutely fail. Now, he has postponed his grand-children — that is, his daughter’s children— to the daughter, solely because the daughter was to take for life, and if he had known that she could not take for life, he would not have postponed the children until after her death; he would not have left her and her family destitute in the meantime. It is a mere accident that the daughter cannot take the life éstate, and I am of opinion that the children are postponed to the daughter simply that she may have the property for life, and if she could not have it for life, the children would have had it *424immediately. That would be the conclusion I should come to from the reason of the thing, without the decisions. But the decisions are all the same way.” And the learned vice-chancellor proceeds to cite the cases to that effect. That case is so exactly in point, and the reasoning employed is so directly applicable to the case under consideration, that it would seem to be unnecessary to say more.

¶7It is true that, so far as we are informed, we have no case in this State directly on the point. But we do find cases cited by respondent’s eouusel, which, by analogy, support our conclusion. In Lesly v. Collier, 3 Rich. Eq., at page 128, it is said by Dargan, Ch., that “If there be a legacy to one for life, with remainder to another, which remainder on the death of the testator would be direct and vested, and not contingent, and the person intended to be the tenant for life dies in the lifetime of the testator, I think it cannot be doubted that, in such a case, the legacy does not lapse, but, on the death of the testator, goes at once to him who, in the scheme of the legacy, was intended to be only a remainderman.” The same doctrine is laid down by DeSaussure, Ch., in Dunlap v. Dunlap, 4 DeS., at page 314. To the same effect, see Bell v. Towell, 18 S. C., 101.

¶8Now, as a will speaks at the death of the testator, it is clear that in these cases no precedent life estate was ever really created, inasmuch as the proposed life tenant was dead at the time the will took effect, for a devise or bequest to a person deceased at the time is void ab initio (Pegues v. Pegues, 11 Rich. Eq., 554), except in the case specially provided for by the act of 1789; and, hence, the position so strenuously urged by counsel for appellants, that it is only in a case where a precedent life estate has been created which has subsequently been defeated or destroyed, that the doctrine of the acceleration of the remainder can be applied, cannot be sustained. Besides, in the case of Lomas v. Wright, 2 Myl. & K., 769, cited by the counsel for respondents, it seems to have been held that where a limitation is void, being to a monk for life, who was regarded as civilly dead, the estate will not revert to the grantor, but the next limitation in remainder will take effect. And in Avelyn v. Ward, 1 Ves., sr., 420, recognized in Doe d. Wells v. Scott, *4253 M. & S., 300, as well as by our own court in Witherspoon v. Watts, 18 S. C., at page 411, Lord Hardwieke said, “that he knew of no case of a remainder or conditional limitation over of a real estate, whether by way of a particular estate so as to leave a proper remainder, or to defeat an absolute fee before, by a conditional limitation; but if the precedent limitation, by what means soever, is out of the case, the subsequent limitation takes place.” See, also, 2 Jarm. on Wills (Perkins’ edit.), 702, where it is said in effect, that where an estate is given to a person for life, with a vested remainder in another, such remainder “takes effect in possession whenever the prior gift ceases or fails, in whatever manner. ”

¶9We are, therefore, of opinion that there was no error on the part of the Circuit Judge in the view which he took of the main question in the case. This disposes of the first, second, third, and sixth exceptions.

¶103 As to the fourth exception, we do not see what interest the appellants have in the question there raised, under the conclusion which we have adopted. But, at all events, we may say that we concur with the Circuit Judge in the view which he has taken. We do not see that the testatrix intended that Charlee Ann and Floyd W. Weathersbee ■were to take any beneficial interest whatever in the Dickes place. By the fifth clause of the will, all of the rents and profits which accrued from that place between the date of the death of the testatrix and the death of the survivor of Floyd W. and Charlee Ann Weathersbee, were given to their three children, Bessie, Jane B., and James Moore Weathersbee, and by the first codicil, the place itself is to go to James Moore Weathersbee, upon the death of the survivor of Floyd W. and Charlee Ann Weathersbee, when the right of the three children to share equally in the rents and profits of the Dickes place ceases. We do nob see what possible beneficial interest either Floyd W. Weathersbee or his wife can have in that place. The utmost that could be said, is that they were to act as trustees for their children and to hold the Dickes place, and pay over the rents and profits thereof to their children, until the death of the survivor of the parents.

¶11*426It is very clear, under the view which we have taken, that the fifth exception cannot be sustained.

¶12The judgment of this court is, that the judgment of the Circuit Court be affirmed.