Summary
holding lost codicil did not destroy or revoke the testator's will during the testator's life even though the codicil was last seen in the possession of the testator
Summary of this case from Golini v. BoltonOpinion
14464
April 13, 1937.
Before DENNIS, J., Marlboro, December, 1936. Affirmed.
Proceeding by Julian G. McLaurin and another, executors and trustees under the will of Lawrence D. Newton, deceased, against Nancy Darcas Newton and others, for the construction of the will, wherein Harmon W. Newton and others brought a proceeding in the original cause begun by the executors and trustees seeking to prove a codicil of the testator. From a decree which affirmed a report of the Special Referee in favor of Angus Graham Newton, by R.D. Miller, his guardian ad litem, Hattie Smith and others appeal.
Report of Special Referee Charles E. Sligh and order of Judge Dennis follow:
REPORT OF SPECIAL REFEREEMr. L.D. Newton, of the County of Marlboro, died on the 4th day of September, 1933, leaving a widow but no lineal descendants. There was probated with his last will, four codicils. By the terms of his will, after providing an income for his widow for life, giving to his sole surviving brother and such brother's children, a debt to him due by this brother, and a legacy to the Newtonville Cemetery Association, he provided that all of his property should be divided into twenty-five shares, or parts, which shares or parts he gave per capita to a nephew by marriage and his twenty-four nephews and nieces by blood. For the purpose of such division he authorized his executors "to divide my real estate into twenty-five equal shares by partition or by sale, or by partition as to part, and sale as to the balance," "to sell real estate or personal property, exchange, partition, and do every act of every nature to carry out completely the terms of my will without obtaining an order of the confirmation of Court."
The provisions of the will, separately caring for personalty and realty, were:
Item 3. "I bequeath all the residue of my personal property of every kind which I shall own to G.Y. Newton and L.D. Newton, in trust, for the period of time and for the objects herein expressly declared as follows: (a) to apply the net income, or so much thereof as shall be necessary for the comfortable maintenance and support of my wife as long as she shall live. All surplus net income shall be added to and become a part of this trust. At the death of my wife to close the trust by dividing the fund, principal and interest — into twenty-five equal shares and paying over and delivering the shares, as follows: (a) to Charles Lawrence Newton, one share. To the following nephews and nieces, one share each."
Then follows the names of the twenty-four.
Testator's realty is provided for as follows in Item 4: "I direct my executors to divide my real estate into twenty-five shares either by partition or by sale, or by partition as to part and sale as to the balance. I dispose of these shares as follows: At the death of my wife: (a) I devise to Charles Lawrence Newton one share, (b) I devise to each of the following nephews and nieces one share each," and then by name he sets them out.
Among the twenty-four nephews and nieces by blood so provided for in the will by name was Douglas Newton. Douglas Newton died on January 31, 1933, practically seven months before the death of testator, leaving one child, Angus Graham Newton, then seven, now ten years of age. The original will was dated in 1926, and the codicils bear respective dates of 1927, 1928, 1929, and 1930; the exact dates being immaterial. The net estate to be divided by the scheme of the will into twenty-five shares is valued at approximately $165,000.00, so that each share represents about $6,500.00; and the estate is ready for distribution due to the fact that the life tenant concluded an agreement, approved by the Court, whereby her interest was figured in money and paid by the executors from the assets of the estate. Accordingly, to all intents and purposes, the remainders have fallen in and all parties are entitled at this time to their respective shares.
Some time after the death of the testator and after the settlement with the life tenant, a nephew of testator by marriage, Harmon W. Newton, brought a proceeding in the original cause begun by the executors and trustees for a construction of the will, etc., wherein and whereby he set up, and sought to prove, a codicil of the testator, numbered five, giving petitioner an equal share in said estate. By the terms of the codicil testator provided, inter alia: "It is my will and desire for H.W. Newton to be a distributee in my estate, and I hereby change Items 3 and 4 of my original will so as to make H.W. Newton share in my estate instead of being twenty-five divisions. I want it twenty-six, so as to give one share to H.W. Newton."
By a succeeding paragraph in this alleged codicil, the commissions of the executor, Julian G. McLaurin, were increased to 5 per cent. in addition to $1,000.00 previously provided. The scrivener of this codicil No. 5 kept a copy as was his custom, but the original was not produced, and is admitted on all sides cannot be found.
All parties to the case seemed to have agreed that the matter of the proof of the codicil should be heard originally in the Court of Common Pleas, and when called for trial it was settled by order whereby a small amount was paid by the heirs and $5,000.00 by the widow of testator, directly to the said contestant, H.W. Newton, a nephew of said widow; the executor, McLaurin, who prepared the will, receiving nothing by this settlement. He stated in his answer that he only answered because called upon to state the truth, and upon the settlement between the heirs having been concluded waived the right to about $14,000.00 of extra commissions to prevent further litigation concerning an estate of which he was a fiduciary and refused to go to law about a codicil he had himself prepared — a position seldom found, and to be greatly commended. The order held specifically that in so far as the executor, Julian G. McLaurin, and H. W. Newton were concerned, the codicil was not proven and said parties had no interest whatsoever in the estate; but specifically preserved all rights of the minor, Angus Newton.
This codicil No. 5 is dated March 26, 1933, or practically two months after the death of the nephew Douglas Newton.
The claim of the parties in interest under the will of testator is that the legacy to Douglas Newton lapsed with his death, and that consequently his child, Angus Graham Newton, cannot inherit. The claim of the minor by his guardian ad litem is to the contrary, and such question is presented to me for determination. All parties have agreed on this reference, waiving the right, if any, to a proof of this codicil as provided by statute.
While the one question is whether or not the legacy to the father of the claimant lapsed with his death, such resolves itself into:
(a) Whether codicil No. 5 has been proven as in force at the time of the death of testator;
(b) If so proven, whether a proper construction thereof with the will prevents a lapse; and
(c) Whether proof of the due execution alone of said codicil would prevent a lapse of said legacy.
Accordingly, we have for determination the questions of execution, revocation, and construction of a will, while the testimony also involves the competency as a witness of a party claimed to be in interest, and his transactions and conversations with one deceased under Section 692 of the Code of 1932.
The case presents most interesting questions.
As to the due execution of this codicil No. 5. I think there can be no two opinions. There is, in fact, absolutely no evidence to the contrary. It is proven by the testimony of two of the three subscribing witnesses, men of character, as may be said of the scrivener of this codicil No. 5, the present Judge of Probate for Marlboro County. While one witness testifies that he has no independent recollection of the matter, he also says the same of another codicil of the same testator that was proven by him because he knew his signature on the original and, in fact, this witness also witnessed all four of the other codicils as shown by the originals in evidence. This is sufficient under our decisions, and the general law found elsewhere. The validity of a will does not depend solely upon the testimony of the subscribing witnesses, and may be otherwise proven if they forget attestation or unlawfully deny it. Pearson v. Wightman, 1 Mill, Const., 336, 12 Am. Dec., 636; Sampson v. White, 1 McCord, 74; Black v. Ellis, 68, Riley, 73; In re Kelly's Will, 206 N.C. 551, 174 S.E., 453; Gable v. Rauch, 50 S.C. 95, 27 S.E., 555; Welch v. Welch, 9 Rich., 133; Howell v. House, 2 Mill, Const., 80.
So, without the testimony of the scrivener the due execution has been fully proven; but as his testimony in other particulars is important, its competency should be determined. This involves a most unusual situation in that the codicil, in so far as any possible interest of the scrivener is concerned, has been declared of no force, of no legal effect; yet the order, at the same time, preserves all rights of the minor claimant here. Thereby such witness is declared as a matter of law to have, and to have had, no interest and the codicil as to him is held invalid, though its validity is now the point at issue between other parties; and parties who were all before the Court when such order was taken. By the law of the case this witness has no interest in the event of the action. Such is res adjudicata, and his testimony is competent.
"An order of a Circuit Judge unappealed from is binding in subsequent stages of the same cause. There can be no appeal from one Circuit Judge to another." Kerchner v. Singletary, 15 S.C. 535.
"The finding and adjudication of a Circuit Judge that a purchaser at an execution sale was not a party to subsequent proceedings before him to set aside the sale become the law of the case, until appealed from, and cannot be revived or reversed by any succeeding Circuit Judge." Hunter v. Ruff, 47 S.C. 525, 25 S.E., 65, 58 Am. St. Rep., 907.
"A decree from which no appeal is taken becomes the law of the case in subsequent proceeding in the case to adjudicate rights as between the defendants pursuant to the decree." Bowling v. Mangum, 122 S.C. 179, 115 S.E., 212.
The case cited of Devereux v. McCrady, 46 S.C. 133, 24 S.E., 77, does not apply, as there the executor had no interest that could be affected, while here the contrary would appear, but for the order. Of course, since the order, the case may be in point, but the Devereux case really establishes no new precedent and is in accord with the construction of requiring a personal monetary interest. Norris v. Clinkscales, 47 S.C. 488, 25 S.E., 797.
Now, a will, different from other instruments, takes effect only from the death of the testator, and it may be correct, as contended by claimant, that where the execution of a will, as distinguished from its probate and establishment, is concerned, a party in interest may testify; but this would only be true, I think, where establishment and probate were not at issue or dependent upon execution — a nice point but of no possible fruitful importance, as the "law of the case" in this litigation settles the question as to the competency of the witness, McLaurin.
My findings are that the testimony of Julian G. McLaurin is competent, and that codicil No. 5 was duly and legally executed in accordance with law.
Did testator die leaving his codicil No. 5 in full force and effect? The rule is that if the original will of a party cannot be produced after his death he is assumed to have destroyed it animo revocandi, and the burden of proof to the contrary is on him who sets up and would prove such lost will. Durant v. Ashmore, 2 Rich., 184; Means v. Moore, 3 McCord, 282. The facts briefly are: On March 28, 1933, testator solemnly executed his codicil. At the same time he had the scrivener prepare a chattel mortgage to him to be signed by a share cropper, had both papers delivered to him, left with the two papers in his possession, and got in his automobile; on September 4th, a few days in excess of three months thereafter, he died, and the will and four codicils were found in his safe, but not this codicil numbered five, although his wife made the statement within such time as to come within the res gestae ( Nock v. Fidelity D. Co., 175 S.C. 188, 178 S.E., 839, 98 A.L.R., 757; Cain v. Atlantic C.L.R. Co., 74 S.C. 89, 54 S.E., 244), that he had recently been looking for two important papers. This codicil No. 5 and the chattel mortgage of a share cropper are the only two papers even suggested as not found by his executors and trustees. In addition and only two or three days before his death, he decided to put his will and codicils all in one instrument and stated in the presence of a disinterested and unbiased witness that he then had in existence a will and five codicils. About one month before he died, and the time is affixed by positive proof, he made a statement to another disinterested witness that he had cared for his nephew by marriage, Harmon W. Newton, by a will, while by this codicil No. 5 alone had he ever made provision for such person. About three months before his death, testator traded automobiles, and the proof is that the car that he traded was by a most reputable firm turned over to one of its negro employees whose instructions and custom were to thoroughly clean out such cars for resale. An old gray-haired negro, Jim Leak, by whom the chattel mortgage (made for testator at the same time he executed codicil No. 5) was to be signed, says testator told him he had misplaced the paper and would have him sign it later. This mortgage and this codicil were handed testator at the same time and then, for the last time, by any one else seen. Yet from then on until two to three days before his death he spoke of the codicil as in existence and of misplacing the mortgage, and was known by his wife to have been looking for two lost papers. This evidence is competent, not to prove the contents of the codicil or to vary the will, but to show the codicil was not destroyed animo revocandi. Durant v. Ashmore, 2 Rich., 184; Harleston v. Corbett, 12 Rich., 604; Baushett v. Keitt, 22 S.C. 187; In re Spires' Will, 111 S.C. 373, 97 S.E., 847.
This codicil, which would have provided for commissions to the executor of $15,000.00 in excess of that allowed by the will, was in the possession of at least some of those interested, certainly from testator's death to the night after his burial, a period of about two days; and while in testator's safe, the combination was known to the heirs interested Testator had good reason for wanting to include in his will, and care for, this nephew by marriage, Harmon W. Newton. He made the statement that he had been good to him always and had kept his books, while Harmon's brother was treated equal in the original will. All of the testimony in the record is from people in no way related or connected with the family and interested only to speak the truth. The motive for the codicil was fully proven; its execution established beyond doubt as was its existence from the time of its execution on until about two days before his death.
"Where a will is traced to the possession of testator, but cannot be found after his death, there arises a presumption of destruction by him; this, however, is a presumption of fact, rebuttable by evidence. If the depositories of the deceased pass into the custody of the heirs at law, and his papers are first examined by them, this does not, as matter of law, rebut the presumption, but is a circumstance to be considered by the jury in determining this question of fact." Bauskett v. Keitt, 22 S.C. 187.
I think the evidence is plenary, and justice demands that I hold the will was not destroyed, or revoked, by the testator during his life time and that he died with it in full force and effect.
Having found that codicil No. 5 was duly executed and that testator died with it in full force and effect, next question to be presented is whether the minor child, Angus Graham Newton, inherits.
Of course, the cardinal purpose of construction is the intention of the testator. I have carefully read and considered numerous cases on the subject, but one inevitably comes to the construction placed upon the will of the testator in the case of Dent v. Dent, 113 S.C. 416, 102 S.E., 715, 717, and the case of Dunlap v. Dunlap, 4 Desaus, 305.
In the Dent case there was a vigorous dissent but I feel in this case as stated by Judge Gage in his short concurring opinion that: "There are no technical controlling words in the will to fix a constructive intent of the testator. * * * The circumstances of the case are so strong to fix the real intent that they leave no reasonable doubt in my mind about that intent."
In the Dent case, testator by his will bequeathed certain legacies to two of his wife's relatives, the third and fourth clauses therein being as follows:
"The residue of my estate, both real and personal, which I may die possessed, I direct to be divided into three equal shares, one share I give, bequeath, and devise to my brother, Benjamin T. Dent, one share I give, bequeath, and devise to my brother Samuel H. Dent, and one share I give, bequeath and devise to the children of my deceased brother, James M. Dent, share and share alike.
"I appoint my brothers, Benjamin T. Dent and Samuel H. Dent, and my nephew, Eugene D. Dent, executors of this my last will and testament."
After the execution of this will, and before the death of the testator, the brother, Benjamin, died, and after the death of Benjamin testator executed the following codicil: "As Benjamin T. Dent, one of the persons named as one of the executors of the above written will, has died, I do now, by this codicil to my above written will, appoint my nephew, Samuel T. Dent, as one of the executors of my said will in the place of said Benjamin T. Dent, deceased."
In construing this case the Court stated that the "main question * * * is whether the legacy to Benjamin T. Dent lapsed by reason of his death during the lifetime of the testator, but before the execution of the codicil," and thereabout held as follows:
"The following rule of construction is announced in Roundtree v. Roundtree, 26 S.C. 450, 2 S.E., 474:
"The object of all construction is to ascertain the intention of the testator, and when that is ascertained it must be carried into effect, provided this can be done consistently with the settled rules of law. But how is the intention to be ascertained? Certainly not by a conjecture as to what the testator ought to have done, but by considering what is the plain meaning of the language which he has used, and by giving a careful consideration to wards of the will as a whole, guided by such rules of law as experience has shown to be useful in seeking such intention. We are to read the will as a whole, and from its terms ascertain, if practicable, what was in the mind of the testator at the time he executed it. We may also, where the language used is obscure or doubtful, read such language in the light which may be reflected upon it by the circumstances surrounding the testator at the time he executed his will, but such circumstances cannot be resorted to to prove the testator's intention apart from his language.'
"To the same effect is the language of the Court in Lott v. Thompson, 36 S.C. 38, 15 S.E., 278, to wit:
"'A will is the formal declaration in writing, by which the maker provides for the distribution of his property after his death. This being the case, it necessarily follows that in its construction the first and great object should be to inquire what was the intention of testator. That intention must be gathered from the paper itself, the whole paper taken together, and read in the light of the circumstances surrounding the testator at the time he executed it. Sometimes from the inaccurate use of words, which have a technical, as distinguished from the ordinary meaning, there may be difficulty in ascertaining the meaning.' * * *
"We do not question the principles announced in those cases, which, however, are not applicable to the main proposition involved in the case now under consideration, to wit, that the will and codicil must be construed together, and in the light of the facts and circumstances existing at the time the codicil is executed. Logan v. Cassidy, 71 S.C. 175, 50 S.E., 794.
"It is important to ascertain the scheme of the will in order to determine the effect the codicil had upon it. The scheme was: (1) To dispose of all the testator's property; (2) that the residue of his estate should be divided into three equal shares among his two brothers then living and the children of his deceased brother; (3) that those who were to take part in the distribution of the residue of his estate were likewise to participate in its administration as executors — his nephew Eugene D. Dent, representing the class to which he belonged, viz., the children of his deceased father.
"If the will is construed in accordance with its ordinary meaning, and without reference to technical rules, it shows clearly upon its face that it was the intention of the testator that the children of Benjamin T. Dent should take the one-third of the residue bequeathed to their father.
"When the testator made a codicil to his will, after the death of Benjamin T. Dent, the only change which he made was the appointment of Samuel T. Dent as executor in the place of his father, thus ratifying the scheme of the will that those to whom he bequeathed the residue should also administer his estate. It will be observed that, although the testator then knew of Benjamin T. Dent's death, he did not change the provision of his will that the residue was to be divided into three equal shares. There was therefore an express provision that his brother Samuel H. Dent should receive one-third and the children of his deceased brother James M. Dent one-third. If the children of Benjamin T. Dent are not entitled to the other one-third, then Samuel H. Dent will receive more than one-third, and so will the children of James M. Dent, in plain violation of the express language of the will.
"The rules of construction hereinbefore quoted show that we are not allowed to resort to conjecture when it would have the effect of destroying the express provisions of the will.
"It cannot be successfully contended that the residue may be divided into three equal shares, and that the share bequeathed to Benjamin T. Dent should be divided between his brother Samuel H. Dent and the children of his deceased brother James M. Dent, as this would enable them to take more than the one-third intended by the testator. Roundtree v. Roundtree, 26 S.C. 450, 2 S.E., 474.
" Furthermore, if the children of Benjamin T. Dent are not allowed to take the share bequeathed to him, then there will be another residue to be divided under the statute of distribution, and not under the will, although the plain intention of the testator was to dispose of all his property by his will.
"When the provisions of a will are doubtful or inconsistent, under the technical rules of construction, the Courts prefer an interpretation that will give force and effect to the intention of the testator, according to the ordinary meaning of the will and that will render effective the express language thereof, rather than to a conjecture arising from a supposed omission."
It is clear from the wording of the will and codicils here that the testator, Mr. Newton, desired his nieces and nephews, and his two nephews by marriage to inherit, each a 1/26 interest (before the provision for H.W. Newton by codicil No. 5 each a 1/25 interest). In the Devereux case it was clear, and the Court held that he desired an equal division and that his intention should prevail. In the Dent case the same situation applied and the Court again declared the manifest intention of testator. L.D. Newton used practically the same words in his will as that used in the Dent will, while the general idea, or intention, was identical. The scheme of each was (1) to dispose of all testator's property; (2) the residue should be divided into equal shares, and so particular was this testator to dispose of everything he owned that he divided all the residue of his estate, personal and real, by seperate items (III and IV), and even included all net income not expended for the maintenance and care of his widow; (3) in each the legacy would have lapsed but for a codicil; (4) in the Dent case there was merely the appointment of an additional executor by which the Court inferred that those who inherit should handle the estate, while here we have the definite and positive statement after the death of Douglas Newton, that his estate should still be divided into equal parts as before, and there is no one to take this part of Douglas but his son. Before codicil No. 5, the estate. and all of it, the residue, including unexpended income, was to be divided into twenty-five parts. That was during the life of the nephew, Douglas Newton. Knowing Douglas was dead, and within two months thereafter testator executes this codicil No. 5 and says he yet wants Douglas Newton's share kept intact, and that could only be for his son, as in the Dent case, but it must be reduced to a 1/26 because of his desire to care for Harmon, a nephew by marriage. He had before this executed a codicil providing a limitation over after the death of a nephew, R.C. Newton, in case he died without children; such nephew being of considerable age, married, and childless. This was the scheme of his will; this was the intention of an old gentleman who had amassed rather a fortune by our standards of fortunes. To hold he died intestate as to this 1/26 would do away with the real scheme and intention of the maker, divide his property so that a 1/26 specifically set apart as one share must be again divided into from 1/130 to 1/204; or to give to each, instead of an equal 1/26 part, varying portions from 3/65 to 9/204, and divided his estate in part per capita, as he had declared his intention and affection, and in part per stirpes under the statute of distribution. Such certainly was not his intention. It would make most impractical and difficult the instructions to his executors to "divide my real estate into twenty-five equal shares by partition or by sale, or by partition as to part and sale as to the balance." And he said in codicil No. 1, "The administration of my estate ought to be simple and easy."
As said in Dent v. Dent, supra: "It will be observed that, although the testator then knew of Benjamin T. Dent's death, he did not change the provision of his will that the residue was to be divided into three equal shares. There was therefore an express provision that his brother, Samuel H. Dent, should receive one-third and the children of his deceased brother, James M. Dent, one-third. If the children of Benjamin T. Dent are not entitled to the other one-third, then Samuel H. Dent will receive more than one-third, and so will the children of James M. Dent, in plain violation of the express language of the will."
And in Deveaux v. Barnwell, 1 Desaus., 497: "Thus where the intention of the testator is to make an equal distribution of his estate among his children, and where such intention is founded in reason and justice, and not contrary to some rule of law or the principles of equity, Courts of equity will carry them into effect. In the case before the Court, the intention is manifestly to divide the estate not disposed of by the wife, among all the testator's children. At the time of making his will all of them were alive; but two of them died before the testator, leaving issue. The testator never republished his will (though he lived some time after) nor made a new one. It is a strong presumption that he meant that his grandchildren should stand in the place of their parents. To exclude them would be to defeat his expressed intent to provide equally for his children. And though a will is not consummate till the death of the testator, it is in many respects inchoate from the execution. This construction may not quadrate with strict rules; yet it is not repugnant to any rule, and it is well warranted. Suppose a testator should leave by his will all his estate, to be equally divided among his children, and one of them dies a few days before him leaving a large family, depending on the bounty of the grandfather, and he dies without altering his will; ought the grandchildren to be left destitute, and the large estate to go wholly from them; perhaps to one child of testator, and he without a family? In such a case, the Court would be disposed to say with Lord Chancellor Macclesfield, 'if there is no precedent it is time to make one.'"
It clearly appears that the legacy did not lapse; that to so hold would construe the will contrary to the intention of testator; and I must decide that Angus Graham Newton receive a 1/25 interest in the estate, and equally with the children of Peter L. Newton in all respects.
But even if there were any doubt as to the establishment of this codicil No. 5 (and as to this I have none), I think the Court would probably still hold that the legacy would not lapse. The case of Dunlap v. Dunlap, 4 Desaus., 305, is a most interesting decision on the question of the construction of wills. At the time of this decision a will with two witnesses seem to have been required to pass title to realty. There a will as made with two witnesses contained specific bequests as to personalty and appointed executors. The executors qualified, and assuming that they had authority to do so, sold lands and attempted to administer the estate in accordance with the provisions of the will. Numerous questions were involved, but the case is pertinent on the point at issue here because at the time of its rendition the will did not have sufficient witnesses to pass title to realty, and the law distinctly provided that personalty should first be exhausted for the payment of debts. The testator left many debts, and the legatees were not the heirs at law. The legatees claimed that the will was good and the lands were liable for the payment of debts. The heirs at law admitted the will to be good in so far as personalty was concerned, but claimed the personalty should be first exhausted in the payment of debts and that testator died intestate as to the lands, which descended to them. In a most learned decree the chancellor, Judge Desaussure, held that the will was invalid and in favor of the heirs at law. On appeal the full Court, including Judge Desaussure, reversed the decision and held: "In this case it appears that the legacies are not only specifically given, but that the testator has fully expressed his intention to charge his real estate with the payment of his debts. It is true that the will cannot operate as a disposition of his lands, because it was not executed conformably to the act, and this charge on the lands may therefore be said to be void; but this charge nevertheless amounts to a plain declaration of the testator, that the legacies given shall be exempt from the payment of his debts, and the will as to the legacies is valid and operative. It follows then, that the lands of the testator, which have descended to his heirs, must first be applied to the payment of his debts, before the specific legacies can be broken in upon. The decree therefore on this point must be reversed." Dunlap v. Dunlap, 4 Desaus., 305.
From the foregoing it was clearly established that void provisions of a will could and should be given consideration in arriving at the intention of the testator. So, even if this codicil No. 5 were by the testator revoked before his death and it were thereby made void, such revocation could not revoke the declaration of his intention that under the original will his estate, regardless of the death of Douglas Newton, must be divided into twenty-five parts (twenty-six including H.W. Newton) and that the child Douglas Newton would inherit as in the Dent case. This construction comports with common justice, dictates the real and manifest intention of the testator as to which I think there can be no doubt, disposes of the entire estate, carries out the scheme of the will, deals fairly with a young child who, otherwise, would be further penalized because solely of the death of this provider, and is required by the decision of the Supreme Court in Dent v. Dent, supra.
My recommendations are that L.D. Newton died leaving in full force and effect codicil No. 5, and, for the reasons stated, that Angus Graham Newton is entitled to, and should receive a 1/25 portion of the estate, and in all respects share therein as the children of P.L. Newton.
ORDER OF JUDGE DENNISIn the original cause brought to construe the last will and testament of L.D. Newton, deceased, and settle and wind up his estate, Angus Graham Newton, a minor, appeared by his guardian ad litem and set up independent rights under the will. The question at issue, and the sole question originally, was whether or not a legacy in the will given to said minor's father, Douglas Newton, had lapsed because of the death of the said Douglas Newton before the testator. I held such legacy had lapsed, and while an appeal was pending from my order, another claimant, Harmon W. Newton, intervened, set up and sought to prove a copy of a codicil executed by the testator but not found with his papers after his death and never admitted to probate. This codicil manifestly affected the decree formerly passed by me, and a petition to rescind my former order was granted and the cause reopened. Thereafter settlement was made with Harmon W. Newton, and the suit affecting the minor, Angus Graham Newton, was by consent referred. From a report of the Special Referee favorable to Angus Graham Newton, the cause came back to me on appeal and was fully argued.
Upon consideration of the report of the Special Referee, the same is affirmed in each and every particular and is made the judgment of the Court; all exceptions being overruled. The executors of the estate of L.D. Newton are ordered to pay by joint check to the General Guardian of Angus Graham Newton and the attorneys for his guardian ad litem all amounts found to be due to him. The fee of the Special Referee is fixed at $300.00, and the fee of the guardian ad litem at $350.00, both, together with all other costs of this suit, to be taxed against the estate of L.D. Newton, and paid by the executors of said estate.
Messrs. J.K. Owens and Bennett Carroll, for appellants, cite: As to existence of codicil at time of death: 22 S.C. 190; 28 R.C.L., 388. Where legacy or devise lapses: 28 R.C.L., 327; 40 Cyc., 1925; 36 S.C. 308; 13 Rich. Eq., 104; 159 S.C. 282; 36 S.C. 302; 26 S.C. 450; 20 S.C. 317.
Messrs. Tison Miller, for respondent, cite: Construction of will: 26 S.C. 450; 2 S.E., 474; 36 S.C. 38; 15 S.E., 278; 71 S.C. 175; 50 S.E., 794.
April 13, 1937. The opinion of the Court was delivered by
The appeal here is from the decree of his Honor, Judge Dennis, of date December 12, 1936, wherein he affirmed the report of Hon Charles E. Sligh, Special Referee. The history of the case is fully set forth in the report.
After a careful consideration of the record and the questions raised by the exceptions, this Court is satisfied with the conclusion reached by the Circuit Judge.
All exceptions are overruled. It is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BONHAM and BAKER concur.