MacDonald v. Fagan , 118 S.C. 510 ( 1922 )

April 11, 1922. The opinion of the Court was delivered by Jerome Fagan made his will, that reads as follows:

"State of South Carolina.

"I, Jerome Fagan, of the City of Columbia, in said State, being of sound mind, memory and understanding, but feeble in body and well knowing the uncertainty of life, do make, publish and declare this to be and contain my last will and testament, hereby revoking all instruments of a like nature heretofore made by me.

"Item 1. I devise unto my beloved wife, Lillie Fagan, all of my right, title and interest (the same being the one-half thereof in fee as tenant in common with my brother, Thomas) in and to all and singular the property known as the Hotel Jerome, including the lot of land connected therewith and belonging thereto, situate, lying and being on the northwest corner of the intersection of Main and Lady Streets in the City of Columbia, fronting on said Main Street and extending back along the line of said Lady Street, for and during the term of her natural life or widowhood, and from and immediately after her death or remarriage it is my will and desire that my interest in said property be sold at public outcry on such terms as my executors or the survivor of them may think discreet and proper, and the proceeds thereof to be divided as is hereinafter provided in Item 3 of this my last will and testament.

"Item 2. I devise unto my said wife under the same limitations as is set forth in the preceding item of and concerning my interest in the realty aforesaid, i.e., for and during the term of her natural life, or widowhood, all of my right, title and interest in and to the personal property which may be in the Hotel Jerome at the time of my death, consisting of the appointments, fixtures, furniture, bedding, linen, culinary articles, together with the office furniture and other paraphernalia connected within or in any wise used about said Hotel Jerome, as well as all accounts, debts, claims or demands which may be outstanding or owing to said hotel business and management at the taking effect of this instrument, and from and immediately after my said wife's death or remarriage, it is my will and desire that my interest in said personalty and choses in action (my interest therein being the one-half thereof, my brother, Thomas, being the owner of the other half) be sold at public outcry on such terms as my executors, or the survivors of them, may think discreet and proper, and the proceeds thereof be divided as is hereinafter provided in Item 3 of this my last will and testament.

"Item 3. Out of the proceeds of the sale of the property, real and personal, mentioned in the two foregoing items of this my last will and testament, I make the following bequests in money:

"1. To the children of my nephew, John O'Hara, the sum of two thousand dollars, to be divided equally among the child or children of a deceased child to take its parent's share.

"2. To my niece, Mrs. Janie Deck, of Macon, Georgia, the sum of five hundred dollars.

"3. To my nephew, Patrick Fagan, of County Meath, Ireland, five hundred dollars.

"4. To Nannie Fagan, sister of Patrick, of the same county in Ireland, five hundred dollars.

"5. To my sister, Bridget Hickey, of County Meath, Ireland, seven hundred dollars.

"Item 4. There is deposited in my name in the Carolina National Bank, Columbia, S.C. the sum of two thousand dollars, which I bequeath to my wife, Lillie Fagan, with the request that she give out of said sum of two thousand dollars, five hundred dollars to St. Peter's Catholic Church of Columbia, the same to be expended by the pastor thereof as he may see fit for the benefit of the Church and congregation.

"Item 5. There are two deposits by my brother, Thomas, and myself under the firm name of Fagan Brothers in the course of business as keepers of the `Hotel Jerome' to be disposed of, one being in the Central National Bank of Columbia, S.C. and the other in the Carolina National Bank of Columbia, S.C. the deposit in the latter named Bank being some $5,000.00. It is my will and desire that my executors, or the survivor of them, shall use so much of said moneys coming to my estate (and I am entitled to the one-half thereof) as will with a like amount to be expended by my brother, Thomas, complete the improvements now under way in and upon the `Hotel Jerome' as set forth in the plans and specifications thereof; and upon the completion of said work and improvements any and all sums remaining over and coming to my estate therefrom I wish to go into the hotel business now conducted by my brother, Thomas and myself, and to be controlled and expended by my wife and my brother, Thomas, in managing the same.

"Item 6. All bonds and stocks of what kind or nature soever I may own at the time of my death, I bequeath to my dearly beloved wife, Lillie Fagan, and I devise to her all of my right, title and interest in the real property situate, lying and being in the City of Columbia on the corner of Gervais and Gates Streets.

"Item 7. And I bequeath to her, the said Lillie Fagan, my interest in a bond for $4,000.00, secured by a mortgage of Main Street property, where J.M. Van Metre conducts his furniture business, which said bond and mortgage, made and executed by said Van Metre as a part of the purchase money of the land on which said mortgage is a lien, belongs one-half to me, the other half to my brother, Thomas.

"Item 8. All the rest and residue of my estate, real and personal, I devise and bequeath to my wife, Lillie Fagan.

"Item 9. I nominate, constitute and appoint my said wife, Lillie Fagan, and her brother, William MacDonald, of New York, executors of this my last will and testament.

"In witness whereof I have hereunto written my name and affixed my seal at the City of Columbia the tenth day of November, 1898."

"Jerome Fagan. [L.S.]"

(Properly witnessed.)

The only question in the case is the construction of Item 8.

There are two fundamental principles that need no citation of authority to support them: (1) The intention of the will as a whole governs. (2) Intention is a term of art, and signifies the meaning of the words used. If the meaning of the words used is clear, then they are controlling. Sometimes the words used are not clear. In that event surrounding circumstances may be resorted to from the necessity of the case. Taken alone, the words of Item 8 admit of no doubt. The whole will must, however, be considered, and every part given its full weight.

The controversy is over the surplus that is sure to remain after the payment of the legacies specified in Item 3. The appellants claim that the testator is intestate as to this surplus, and they claim it as the heirs at law of the testator. The respondents claim it under the will of Mrs. Lillie Fagan, now dead, as covered by and included in the residuary bequest. The words used in Item 8 are unquestionably broad enough to include the surplus. "All the rest and residue of my estate, real and personal," include all of his property not specifically devised or bequeathed. That is as clear as it can be. The surplus proceeds of sale after paying the $4,200 of bequests is not devised in Item 3, and, not being disposed of by any other item, must go to the residue. The testator had two ways open to him. He could either provide for the surplus in Item 3, or by another clause, general, sweeping, all-inclusive, thereby dispose of this surplus. He adopted the latter plan.

The appellant urges two objections to this view: First, that Item 3 is manifestly incomplete; and, second, the will by specific provision gives Mrs. Fagan, his wife, only a life estate in the hotel property

I. Item 3 may be incomplete taken by itself. The will must be taken as a whole. If Item 8 had been added as Subdivision 6 to Item 3, then it would have been impossible for the most critical to say Item 3 was incomplete. It is difficult to see how Item 8 is to be defeated by reason of its separation from Item 3 by other items. If Item 8 had been added as Subdivision 6 to Item 3, then the residue might have been confined to the surplus proceeds of sale of the hotel property. Item 8 is not a subdivision of any other item. It is a general item, and applies to any surplus, to anything, and so written as to include any and all property not given to another.

If, however, it is held that Item 3 is incomplete, and that it was a mistake of the copyist, then it is too clear for any one to doubt that the Courts have no power to supply the omission. The case fails to show that there was any other property upon which Item 8 could operate, except the surplus proceeds of the sale of the hotel property. Item 8 must dispose of this surplus, or it is meaningless. Every clause of a will must be considered and given full force and effect.

II. It is said that Mr. Fagan gave to his wife a life estate only in the Hotel Jerome property. According to the express language of his will Mr. Fagan gave to his wife an estate for life or widowhood in his one-half interest in the hotel property itself, and the residue of the proceeds of sale after the payment of the $4,200 of bequests. That is what the will says shall be done with his property. That is the plain English of it. The will as a whole bears out that idea. There is no item except Item 3 that does not provide for his wife, Lillie Fagan. The wife is made executrix. The executor is not Thomas Fagan, the brother of the testator, but William MacDonald, the brother of Mrs. Fagan, and a non-resident of this State. Practically the power of sale is given to Mrs. Fagan. It is said that the life estate precludes its exercise by Mrs. Fagan. This overlooks the fact that Mrs. Fagan's rights in the property itself might terminate upon her second marriage. The intensity of the testator's love and regard for his wife and the fullness and completeness of his surrender of his property to his wife is shown by the provision that, notwithstanding the fact that the testator realized that after his death his wife might marry again, still after her second marriage he directed that the sale should be managed by her.

The will shows another significant thing. The will shows that the testator contemplated a continuance of the hotel business by his wife and his brother. It makes provision for improvement of the property for a more efficient conduct of the business. He makes the legacies a charge on the hotel property; that property she is most likely not to sell.

When a man leaves a will, not only does the general law presume that there is no intestacy, but the statute (Section 3559, Code of 1912) provides that no man shall be considered as having died intestate as to land and personal estate acquired after the execution of his will. Here every presumption is against intestacy, and it would be strange indeed if this testator should be adjudged intestate as to a portion of his estate when he emphasizes the completeness of the gift of the residue by making it a separate item.

When we consider the fact that the wife is the supreme object of the testator's bounty, we would be confronted with this anomaly: The will contemplates the continuance of the hotel business; it contemplates that the wife shall continue the hotel business. It is not the case of a testator who has accumulated sufficient property to allow his widow to live in comfort, and it may be in idleness, for the balance of her life; that she is simply to enjoy the fruits of his labor as long as she shall live, and then turn them over to other objects of his bounty. The will contemplates that the wife shall continue to carry on his business, a business that is a strenuous business, an increasing business, requiring the exercise of every power, a life of wholehearted and intelligent service; and yet, when this life of hard and responsible labor is over, Mrs. Fagan is to turn over the property and business which she has preserved and enlarged to kinsman of his own, to whom he has given in words but a small portion.

The will shows on its face that the testator believed that his wife would be able to carry on the business successfully, without the presence of her co-executor. It is the only reasonable construction of the paper that the testator believed that Mrs. Fagan could do the duty assigned to her. Whence arose this belief? It could only come from their past lives. The will states that the testator was feeble of body, and yet a strenuous business was done. A novice at the helm would sink the ship. The will does not contemplate a novice. When Mrs. Fagan shall die, the business shall end. It follows undisputably that Mrs. Fagan was the ruling spirit of the business, according to the will. We are asked to hold that this will, that in every item save one breathes a spirit of love and devotion to, and respect for, his wife, shall be construed to bind this wife to a life of unmerited servitude to those who are not of her blood.

Something is said about the burning and rebuilding of the hotel. That has no place here, as it was not contemplated by the testator, and any hardship arising therefrom must be endured.

Courts should not make wills. It is their province to construe them. When the clear intention of a will produces a hardship, then the hardship must be endured. But when, as in this will, the language is clear and the result just, mere artificial rules, even if they pointed in another way, must give way. Those rules, however, are not in conflict here with justice. No authorities are quoted in this opinion. A "review of the authorities" is seldom profitable. It takes a master mind to "review the authorities" completely, and a master mind frequently to understand the opinion after the work is done. If authorities are needed, they will be found in the clear and convincing opinion of the Circuit Judge. (Let the decree of Judge Rice be reported.)

The cases that refer to an estate by implication have no bearing on this case. "All the rest and residue of my estate, real and personal, I devise and bequeath to my wife, Lillie Fagan," leaves nothing for implication. It is a directly positive, unlimited gift. There are no lapsed legacies to confuse the mind. The testator devises to his wife a life estate, or until she remarries, in the hotel itself. He then directs a sale of the hotel itself, and disposes of a part of the proceeds of sale. He then gives the rest and residue of his estate to his wife. This residue, so far as the case shows, can refer only to the surplus proceeds of sale. In order to defeat the claim of the wife to this residue, it would be necessary to ignore the residuary clause.

The judgment appealed from is affirmed.