Opinion
13172
June 10, 1931.
Before MANN, J., Anderson. December, 1930, Appeal dismissed and order affirmed.
Action by Mrs. Leslie Landrum and others against Elizabeth C. Branyon. From an order sustaining a demurrer to the complaint, plaintiffs appeal.
The complaint and exceptions, directed to be reported, were as follows:
COMPLAINTThe plaintiffs complaining of the above-named defendants would respectfully show to the Court:
1. That Thomas M. Branyon departed this life testate on or about May 15, 1882, leaving as his sole heirs at law his wife, Lucinda Branyon, and his son, W.C. Branyon, and at the time of his death was seized and possessed of the tract of land containing 180 acres, more or less, referred to and described in his will; that a copy of said will is attached hereto and marked "Exhibit A" and made a part hereof. The allegations of this paragraph are on information and belief. The said will was drawn by a layman.
2. That the said Lucinda Branyon, wife of Thomas M. Branyon, died intestate on or about April 22, 1888; and the said W.C. Branyon died intestate on or about September . ., 1927, leaving no lawful children surviving him at his death, but leaving surviving him his wife, Elizabeth C. Branyon, one of the defendants herein, who is in possession of the real estate that is the subject of this action, claiming fee-simple title thereto. The allegations of this paragraph are on information and belief. Rosanna Branyon, widow of John M.G. Branyon, died in 1900, and in the action below the heirs of John M.G. Branyon were alleged to be R.O. Branyon, J.L. Branyon, Emily Pruitt, and Talullah Darby.
3. That the said W.C. Branyon married, but not until some time after the death of the said Thos. M. Branyon, testator, and two sons were born to the said W.C. Branyon, both of whom died several years prior to the death of the said W.C. Branyon. The allegations of this paragraph are on information and belief.
4. The plaintiffs allege: That the John M.G. Branyon, mentioned in the will of Thos. M. Branyon, was his brother, and that he predeceased the said Thos. M. Branyon by several years, dying in 1866, leaving him surviving as his only heirs, his wife, Rosanna, who died intestate in 1900, having never remarried, and leaving five children, to wit: John Thomas Branyon, Margaret Emily Branyon, later Pruitt, James L. Branyon, Talullah Branyon, later Darby, and Reuben Oliver Branyon. Of these, John Thomas Branyon died intestate in 1876, having never married; Margaret Emily Branyon Pruitt died intestate prior to 1900, leaving as her heirs at law, her husband, . . . . . . . ., and her children, R. Perry Pruitt, Monroe Pruitt, Beulah Bannister, Lula Lowe, Lillie Callaham, Reid Pruitt, and, Olin Moffit Pruitt; and Reuben Oliver Branyon died intestate on or about March 1, 1923, leaving surviving him as his only heirs at law, twelve children, to wit: Mrs. Leslie Landrum, R.L. Branyon, Luther C. Branyon, James O. Branyon, Rosa May Green, Maud Keenan, Julia Erwin, Winnie Derrick, Gypsie McCarter, B.C. Branyon, Ollie Branyon, and Harold Branyon, plaintiffs herein, the youngest of whom was born prior to 1900, most of them having always lived in the state aforesaid, in Anderson and nearby counties. That heretofore, on the. . . . . . day of January, 1930, as plaintiffs are informed and believe, J.L. Branyon, son of said John M.G. Branyon, departed this life, and Mrs. Talullah Darby is still living; and prior to 1921 defendant acquired the interests of said Talullah Darby, J.L. Branyon, and the heirs of Mrs. Pruitt, in all an undivided three-fourths interest in the land below described. At that time, and for some time after the testator's death, Martha Shirley was still living, dying intestate in 1888.
5. That on or about the dates indicated in the deeds referred to in this paragraph, the said W.C. Branyon undertook by gift to convey to the defendant, Elizabeth C. Branyon, the tracts of land therein described. By one deed he undertook to convey a tract of 27.3 acres, more or less, on or about January 15, 1921, said deed being recorded in the office of R.M.C. for Anderson County, State of South Carolina, in Book R-5, at page 583, copy of same being attached hereto, marked "Exhibit B" and made a part of this complaint; by another deed he undertook to convey to her a tract of 2733/4 acres, more or less, on or about the 28th day of December, 1921, said deed being recorded in said office in Book 5-M at page 297, copy of same being attached hereto, marked "Exhibit C" and made a part of this complaint; and plaintiffs allege upon information and belief that the tract of 27.3 acres described in the first deed above mentioned is part of the tract of 180 acres referred to in the will of Thos. M. Branyon. They further allege, upon information and belief, that a portion of the 2783/4 acres, more or less, described in the second deed above referred to, is also included in the said tract of 180 acres referred to in the will of Thos. M. Branyon, as appears more fully by plat of W.L. Mitchell, surveyor.
6. Upon information and belief, the plaintiffs allege that the defendant, Elizabeth C. Branyon, is in possession of those parts of the said 180-acre tract of land that were undertaken to be conveyed to her by the said W.C. Branyon, claiming good fee-simple title thereto, said W.C. Branyon having gone into possession of same under the will of his father, Thos. M. Branyon, and claiming title through him; excepted from her possession are those lots that have been reconveyed by him and by her, as shown by the title records of the aforesaid county.
7. The lots of land from the said 180 acres so reconveyed by the said Elizabeth C. Branyon, as plaintiffs are informed and believe, are as follows: (1) To town of Honea Path, 3 acres, by deed dated March 4, 1925, recorded in Book T-5, page 537; (2) to Ansel W. Putman one small lot by deed dated February 24, 1928, recorded in Book B-6, page 444; (3) to J.A. Pinson, 3.03 acres, deed dated March 4, 1925, recorded in Book T-5, page 535; (4) to J.A. Pinson, 86/100 acre, by deed dated March 4, 1925, recorded in Book T-5, page 536.
These lots of land from the said 180 acres so reconveyed by said W.C. Branyon, as plaintiffs are informed and believe, are as follows: (1) To J. Furman Evans 21.8 acres, deed dated December 17, 1907, recorded in Book G-4, page 120; (2) to J. Furman Evans 4/10 acre, deed dated October 6, 1908, recorded in Book I-4, page 34; (3) to M.B. Dunlap 11.05 acres, deed dated April 7, 1911, recorded in Book P-4, page 192 (refers to Featherstone decree); (4) to L. M. Wilson 1 lot, deed dated May 15, 1912, recorded in Book R-4, page 708.
8. Plaintiffs are informed that defendant claims title to the entire fee in said real estate, claiming same through Thos. M. Branyon, but that the plaintiffs have the better title to an undivided one-fourth interest in said lands under said common source of title. They are informed and believe that on or about May 9, 1904, W.C. Branyon exhibited his summons and complaint in the Court of Common Pleas for the County of Anderson, State of South Carolina, seeking construction of the will of the said Thomas M. Branyon, and claiming fee-simple title thereunder; none of these plaintiffs were made parties thereto, although all of them were living at the time, but their father, R.O. Branyon, was made a party to the said action, and said action proceeded to the decree of the Court by Special Judge C.C. Featherstone, February 3, 1905, adjudicating that the said W.C. Branyon had fee-simple title to the real estate herein involved; that the plaintiffs are informed and believe that this was an erroneous decision, and is not binding upon them because there was no effort made to make them parties to the said action. They were all living at that time in the State of South Carolina, and most of them in Anderson County. Plaintiffs allege that they were executory devises under the will of Thos. M. Branyon, and that the said executory devise was of itself uncertain of necessity, as W.C. Branyon was married, and had a living child on the date of Judge Featherstone's decree. Not only the estate, but the persons who were to take same under said will were not fixed or determined, but were wholly uncertain; said estate in their said father, R.O. Branyon, not being transmissible by him. The record of said action in 1904 in the office of the Clerk of Court in the county aforesaid, is herein referred to as often as it may be necessary for the purpose of this action. The number of Judgment Roll is 6628 in said office.
9. The plaintiffs allege that the said Elizabeth C. Branyon and the said plaintiffs are tenants in common of said property each and all of them having an undivided interest therein, as appears from the above statement and the proportions appearing from the facts above set out; that the defendant, Elizabeth C. Branyon, claims to be the owner in fee simple of the said property and is in sole possession, denying the right of these plaintiffs to any interest therein; and that, since the date of said deeds to her, she has been in possession of said property, receiving the rents and profits therefrom; and that a reasonable allowance for the rents and profits, as they are informed and believe, would be $2,000.00 per year from the dates of said deeds up to the date of final accounting.
Wherefore, plaintiffs pray judgment that the Court construe the will and adjudicate the rights of these plaintiffs herein; that they be declared to be tenants in common with the defendant, of the lands referred to; that Elizabeth C. Branyon be required to account for the rents and profits; and that they have judgment against her for their proportion thereof, and for such other and further relief as the Court may deem just and proper.
The deeds referred to in the complaint are omitted, being ordinary fee-simple general warranty deeds, and descriptions being sufficiently stated in the complaint.
T.M. Branyon's will is as follows:
"WILL"In the name of God, Amen.
"I, T.M. Branyon, of Anderson County and State of South Carolina, calling to mind the uncertainty of life, do make this my last will and testament, revoking all others heretofore by me made.
"Item 1. I give, devise and bequeath to my well beloved son, William Calhoun Branyon, all that tract of land situate in Honea Path Township, containing one hundred eighty acres, more or less, being a part of the home tract whereon I now live. The same commencing — (Testator here inserts description — omitted here as non-essential).
"Item 2. I will and bequeath to the children of my said son, Wm. C. Branyon (if he have any) the other portion of my home tract of land containing one hundred seventy acres, more or less, commencing — (Testator here inserts description — omitted here as non-essential). If my son should die without children, then I desire this tract the first herein given to my son to go to John M.G. Branyon's heirs, the other tract of Martha Shirley's heirs.
"Item 3. I will devise and bequeath to my said son my other tract of land known as the Westley Greer place, containing one hundred seventeen acres, more or less, if I do not sell the same in my lifetime, and if I do, the proceeds I will to go to him.
"Item 4. All the rest and residue of my property of what kind (so ever) not herein before enumerated, I will to my said son, W.C. Branyon, including notes and accounts, and all other property.
"In testimony whereof I have hereunto set my hand and seal this the twenty-second day of October, 1878.
"[Signed] T.M. BRANYON.
"Signed, sealed, published and declared as and for the last will and testament of T.M. Branyon, who signed his name in the presence of each of us and we at his request witnessed him sign his name in our presence and each in the presence of each other on the day and year above written to wit, the 22nd of October, 1878.
"[Signed] JOHN W. DANIELS, A.B. BOWDEN, W.W. HUMPHREYS."EXCEPTIONS
1. Because his Honor erred, we respectfully submit, in sustaining the first ground of demurrer; said ground being:
"Because the plaintiffs were not necessary parties to the action brought during the year 1904 by William C. Branyon against Lucinda Smith, R.O. Branyon et al., which said action resulted in a judgment in favor of William C. Branyon, the Court decreeing that William C. Branyon was the owner in fee simple of the lands in question (Court of Common Pleas for Anderson County, Judgment Roll No. 6628)."
Specification of error: Plaintiffs, all being in esse and in the jurisdiction, were necessary parties, since they take under the will and not through their father, R.O. Branyon.
2. Because his Honor erred, we respectfully submit, in sustaining the second ground of demurrer; said ground being:
"Because R.C. Branyon, the father of plaintiffs' was a party to the action brought by William C. Branyon in 1904 against Lucinda Smith, R.O. Branyon et al., which said action resulted in the Court decreeing William C. Branyon was the owner in fee simple of the land now in question, and the plaintiffs are bound by said judgment, the matter being res adjudicata as to plaintiffs."
Specification of error: The plaintiffs, not being before the Court and not taking through their father, are not estopped, and the matter is not res adjudicata as to them.
3. Because his Honor erred, we respectfully submit, in sustaining the third ground of demurrer; said ground being:
"Under the will of T.M. Branyon plaintiffs took no interest, but only the heirs of John M.G. Branyon, who were living at the time of the death of testator, took an interest, and the Court having decreed that R.O. Branyon, father of plaintiffs, had no interest in the lands in question, the matter is res adjudicata as to his children, plaintiffs in this action."
Specification of error: By the words "heirs of John M. G. Branyon" in the will, testator did not mean only those "living at the time of the death of testator," but his real intention, as shown by all the language of the will, was to include all those who would answer that description at the death of William C. Branyon (without children).
4. Because his Honor erred, we respectfully submit, in holding that plaintiffs were not necessary parties in the former action of 1904-05; whereas, he should have held that, being executory devisees in esse, and being within the jurisdiction, and there being no effort to have them represented or to have any member, or members of the class "sue or defend for the benefit of the whole," they were necessary parties and would not be bound by the decree in this case.
Mr. B.F. Martin, for appellants, cites: Period at which heirs at law of testator are to be determined as distributees: 154 S.C. 78; 51 S.E., 199. Intention should govern: 98 S.C. 236. Question is whether devisees are fixed and certain: 141 S.C. 32; 139 S.E., 196; 153 S.E., 392; 150 S.E., 895. Circumstances surrounding testator pertinent if language not clear: 5 Rich. Eq., 95; 26 S.C. 465; 142 S.C. 242. Meaning of the word "heirs": McM. Eq., 206; 1 Rich. Eq., 296; 6 Rich. Eq., 26; 14 Rich. Eq., 147; 3 Strob. Eq., 66; 3 Rich Eq., 158; 1 Sm. G., 118; 169 Mass. 216. Intention must govern unless in conflict with rule of law: 159 S.C. 86; 156 S.E., 175; 7 L.R.A., 308; 142 S.C. 242. Same word in different parts of will will be construed alike: 40 Cyc., 1402; 94 S.E., 7; 104 S.E., 892; 111 S.C. 177; 135 N.W., 3; 107 N.E., 84; 36 S.C. 38; 15 S.E., 278. When heirs are to be determined: 26 S.C. 464; 104 S.C. 178; 154 S.C. 78; 151 S.E., 199; 16 S.C. 329; 95 S.C. 283. Executory devisees in esse are necessary parties: 80 S.C. 80; 66 S.C. 156; 33 S.C. 301; 20 S.C. 71; 76 S.C. 156; 159 S.C. 86; 156 S.E., 175. Courts hold estates vested rather than contingent: 21 C.J., 995; 87 S.C. 60.
Mr. A.H. Dagnall, for respondent, cites: Where there is a devise to heirs as a class they take at the death of the testator: 116 S.C. 125; 122 S.C. 453; 142 S.C. 404; 148 S.C. 38. Rules of construction: 102 S.C. 12; 1 Rich. Eq., 400; 129 S.C. 333. Interest of executory devisees assignable, devisable and transmissible: 157 S.C. 386, 154 S.C. 92. Successors in title to executory devises are concluded by decree requiring purchaser to account for rental value: 135 S.C. 446.
June 10, 1931. The opinion of the Court was delivered by
This is an appeal from an order of his Honor, Judge Mann, sustaining a demurrer to the complaint. The complaint and exceptions will be set out in the report of the case.
A full understanding of the setting of this appeal can be gotten from the case of Ex Parte Darby, 157 S.C. 434, 154 S.E., 632, 639.
We make special reference to the said case, and this opinion must be taken in connection with what is so well said there both by Judge Townsend and Mr. Justice Cothran. It would be a work of supererogation to attempt to restate the matters that were settled in that case.
It appears that T.M. Branyon died in the year 1892, leaving of force his last will in which he devised a tract of land to his son, William Calhoun Branyon, and another tract of land to the children of the said William Calhoun, if he have any, and then follow these words: "If my son should die without children, then I desire this tract, the first herein given to my son, to go to John M.G. Branyon's heirs; the other tract to Martha Shirley's heirs."
The Court is not concerned with the devise to Martha Shirley's heirs except as it may throw light on the matter in issue.
John M.G. Branyon had died in the year 1866, leaving among other children, Reuben O. Branyon. Reuben O. Branyon died in 1923, leaving the plaintiffs herein, his children. The very able and industrious counsel for the plaintiffs (appellants) states the question here in these words: "Whether the words `John M.G. Branyon's heirs' mean those answering that description at the death of testator, or at the death of W.C. Branyon without children."
We had just as well get rid of one matter that was argued very fully at the hearing, and that was this: Must a will written by a layman be construed differently from that written by a lawyer? There are some expressions in the cases meant for that particular case that seem to give more latitude to the use of legal terms by a layman than when written by a member of the bar. But there is no hard and fast rule on the subject.
The general rule is that where legal terms are found in a will and these terms have a well-defined meaning and application in the textbooks and case law, and especially in statute law of the state, these words when so used will be confined to their well-fixed meaning, unless there is something in the case to show that some other meaning must be attached. An heir is he upon whom the law casts an inheritance upon the death of the ancestor."
"Prima facie, words must be understood in their legal sense; unless by the context, or express words, plainly appearing, intended otherwise." Clark v. Mosely, 1 Rich. Eq., 400, 44 Am. Dec., 229.
Mr. Justice Cothran says, in the case of Ex Parte Darby: "The tract should go to the heirs of John G.M. Branyon. He being dead at that time, there was no question as to who his heirs were."
That is and was a matter easily to be determined. Simply go to the statute law of the state and then see whom John M. G. Branyon left, and the matter is fixed. A will is presumed to speak from the date of the death of the testator, unless it clearly appears to the contrary. That great real estate lawyer, James Y. Culbreath of Newberry, used to say that a will was ambulatory up to the death of the testator, but then it was fixed.
It clearly appears that Reuben O. Branyon was in esse at the time of the death of the testator, T.M. Branyon.
Now, what interest did R.O. Branyon take under the will? He took a contingent executory devise. We may take it as a definition in this case. In analogy to the term "contingent remainder," it is a good term to express without circumlocution the kind of estate that R.O. Branyon took. It seems that at least the party who takes a contingent executory devise ought to have the equivalent of what is a contingent remainder, making due allowance for the difference between these estates as laid down in the books.
"But it was always possible for a contingent remainderman to release to one in possession. The contingent remainder also descends to the heirs-at-law of the remainderman upon his death, provided the contingency does not arise from the uncertainty of the person who is to take the remainder." 4 Kent. Com., 262; Roe v. Griffin, 1 W. Black Rep., 606; Tiedeman on Real Prop. (3d Ed.), § 305.
This same principle has been fully recognized in the recent case of Manigault v. Bryan, 154 S.C. 78, 151 S.E., 199.
"Generally, when there is a devise to heirs as a class, they take at the death of the testator, unless a different time is fixed by the word `surviving' or some other equivalent expression." McFadden v. McFadden, 107 S.C. 104, 91 S.E., 986.
There are other cases holding this same principle, and among these are Avinger v. Avinger, 116 S.C. 125, 107 S.E., 26; Clardy v. Clardy, 122 S.C. 453, 115 S.E., 603; Busby v. Busby, 142 S.C. 404, 140 S.E., 801; National Union Bank v. McNeal, 148 S.C. 38, 145 S.E., 549.
As a general rule, a will speaks from the death of the testator, and must be construed as operating according to the state of things then existing, 40 Cyc., 1424.
"The general rule, then, is that testaments take effect, or as it is sometimes expressed, speak, at the death of the testator, and are to be applied to his personal estate, as it exists at that time. And this should be the construction in all doubtful cases." Garrett v. Garrett, 2 Strob. Eq., 272.
Many other cases might be cited along the same line, but these will suffice.
So in 1904 R.O. Branyon had whatever was meant for his part of the interest taken by John M.G. Branyon's heirs under the will in question. He took that when the testator died. Such being the case, when Judge Featherstone held that W.C. Branyon took the fee to the land, that he would have the right to convey the said property, and that "the heirs of John M.G. Branyon have no interest, whatever, in the said tract of land," then that foreclosed any right that R.O. Branyon had under the said will, under the principles of res adjudicata. When R.O. Branyon failed to appeal from the order of Judge Featherstone he lost all right under the will. His ruling became the law of the case. R.O. Branyon was made a party to the action for the express purpose of asserting any right he might have had and by failing to set up such right or claim was forever barred. He who fails to speak when he ought to speak will be precluded from speaking when he wishes to speak.
Innocent parties and purchasers were both entitled to rely on the fact that it had been judicially determined that R.O. Branyon, as an heir of John M.G. Branyon, had no interest in the said land, and also from the further fact that he never claimed any, when it was his duty to speak.
The Court in the Darby case uses this language: "It appears beyond question that all of the heirs-at-law of the various persons who might possibly be interested in the real estate were made parties defendant except the petitioner in the present proceeding, Talullah Darby."
We therefore answer the first question as follows: The words "John M.G. Branyon's heirs" mean those answering the description at the death of the testator, T.M. Branyon.
Such being the holding and finding of this Court, it follows as a necessary conclusion that the children of R.O. Branyon in esse and in the jurisdiction in 1904 were not necessary parties to the action brought at that time.
Such being the conclusion of the Court, it follows that the plaintiffs are out of Court; his Honor, Judge Mann, was right in sustaining the demurrer to the complaint. The Court has been struck with the clearness of the briefs on both sides which presented the matter in such a light as to relieve the Court of much labor and investigation of the case law, which usually makes a case of this nature one of great labor and toil on the part of a Judge trying to decide it.
It is therefore the order and judgment of this Court that the appeal be, and the same is hereby, dismissed, and the order below affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES COTHRAN, STABLER and CARTER concur.
MR. JUSTICE BONHAM disqualified.