Opinion
13432
June 16, 1932.
Before JOHNSON, J., Oconee, July, 1929. Affirmed.
Suit by Elzie L. Richardson against J.W. Byrd and another as executors of the last will and testament of R.M. Richardson, deceased, and others. From an adverse decree, defendants appeal.
The decree of Circuit Court, requested to be reported, follows:
Action to restrain the defendants, Byrd and Holleman, as executors of the last will and testament of R.M. Richardson, deceased, from delivering unto the other three defendants, as well as unto plaintiff, three certain written instruments, signed by the said R.M. Richardson, and purporting upon their face to be ordinary deeds of conveyance of real property situate in Oconee County, to take effect in praesenti; it being alleged in the complaint, and admitted by the answer of the executors and Ella R. Ballenger, that said instruments (hereinafter referred to as "deeds" for convenience only), were discovered, after the death of the testator, R.M. Richardson, among his other papers and effects, including his last will and testament; that none of said three "deeds" was ever delivered by the said R.M. Richardson, but that they were retained by him, in his exclusive care and custody, until the time of his death; that he also retained full and complete possession and control of the property described in said "deeds," and exercised exclusive dominion over the same, until the time of his decease; and that said purported "deeds" are null and void. It is further alleged by the complaint, and admitted by the answer of the defendants last above named, that said "deeds" are now in the hands and custody of the defendants executors, Byrd and Holleman, that they purpose to deliver the same unto the parties named therein as grantees, and that they will so deliver such instruments unless restrained therefrom by this Court. The "prayer" is that such delivery be enjoined, that the said alleged "deeds" be adjudged to be null and void, and that they be delivered to the Clerk of Court for cancellation.
Though admitting by their answer, as herein before indicated, all of the material allegations of the complaint, the executors and Ella R. Ballenger, by their joint answer, further allege, in substance, that the said "deeds" were inclosed in an envelope with the last will and testament of R.M. Richardson, and sealed up, with written directions upon the face of such envelope that they were to be delivered by his executors upon his death; that, by reason of the will and "deeds" being placed together in the same envelope with the directions aforesaid, and being referred to in the will, the said deeds became a part of the latter, were testamentary in character; and that it is the duty of the executors to execute said will and deliver the "deeds" as directed by the testator.
The infant defendants, Woodfin R. Ballenger and Marion E. Ballenger, by their guardian ad litem, J.B.S. Dendy, likewise allege that such "deeds" constitute a part of the last will and testament of R.M. Richardson by direction and by reference to the same in his will, and, so alleging, submit their rights to the protection of the Court.
The cause was tried before me, without a jury, at the March, 1931, term of Court for Oconee County, at which time I announced that I was of the opinion that such instruments could not take effect as deeds because there had been no delivery thereof, and that they could not be incorporated into testator's will as a part thereof because (1) it did not appear satisfactorily to me that it was the intention of testator that the property described in said "deeds" should pass under his will, rather than by the deeds — in other words, that there was nothing in the will to show that the testator intended to give or dispose of, by will, the property described in the "deeds," — (2) that, even if he did intend to devise the same by will, rather than to give it by the "deeds," the will did not so definitely and clearly describe the papers intended by testator to be incorporated in his will as to permit of their incorporation therein as part and parcel thereof; but, in order to permit the filing of additional authorities, as well as to accord more deliberate consideration to the questions involved, I took the matter under advisement for further study.
The material facts, as I now recall them, are, in substance, as follows: Having theretofore had prepared a will, which, for some unexplained reason, was apparently unsatisfactory to him, and was never signed, the testator, on 20th April, 1927, consulted his attorney, had prepared and, on the same day, in the presence of two witnesses, signed the three "deeds," which are the subject of attack herein, and immediately thereafter, on the same date, April 20, 1927, at the same attorney's office, had prepared and, in the presence of three witnesses, signed the instant will. Before departing from his attorney's office, the three "deeds" and the present will were all inclosed together in one envelope, sealed up and, by testator's direction, his attorney wrote upon the face of such envelope a statement to the effect that the "deeds" were to be delivered by his executors upon his death. Following testator's death on July 1, 1929, the instant will, a codicil thereto, dated September 21, 1927, and the three "deeds" in question, were all found together in a sealed envelope, with the same directions indorsed thereon, among testator's other papers and effects.
It is conceded that the written instruments (in the usual form of deeds of conveyance), cannot take effect as deeds, since there was never any delivery of the same; hence the only question to be determined is whether or not they can be adjudged, under the circumstances, to be a part of the will.
The alleged reference in the will to the extrinsic documents in question, the three so-called deeds, which are sought to be incorporated in such will as a part thereof, is as follows:
"Item Three: It is my will that my estate shall be held intact by my executors until my directions can be carried out, and during the intervening period, I hereby direct them to take charge of all my property not disposed of in special legacies, or by deeds which I have executed, and to lease, rent, and let the real estate, and keep my money invested so as to produce an income," etc.
"Item Six. * * * If it should become necessary to sell any real estate, which I have not disposed of, I hereby give my executors full power and authority to sell, either at private or public sale, * * * and I further authorize and empower them to make any and all necessary transfers of personal property and conveyances of real estate, the same as I could do, if living."
The codicil, of date September 21, 1927, recites that: "Whereas, on the 20th day of April, 1927, I executed my last will and testament, in which I disposed of most of my property to my children and grand-children," etc.: "It is my will that in the event my grand-daughter, Myrtis Richardson, should be left without anyone to support her before the final distribution of my estate, then, in addition to the amount given her in my will, I direct my executors to pay her, at such times as they deem best, one-half of the income from the store-room in the Town of Seneca, just east of the Palmetto Hotel building" — which storeroom the writer of this decree adds, was described in one of the alleged "deeds" to one of the alleged grantees thereunder.
It is too well settled to require the citation of authority therefor that, "If a properly executed will incorporates in itself by reference any document or paper not so executed, whether it be in form of a will or codicil, or of a deed, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will," but any one interested may find a list of such authorities in 40 Cyc., 1094, 1095, and in 28 R.C.L., at page 112.
"If a testator in his will, refers expressly to any paper already written, and has so described it that there can be no doubt of the identity, and the will is executed in the presence of three witnesses; that paper makes a part of the will, whether executed or not." Milledge et al. v. Lamar et al., 4 Desaus., 617, at page 623; Johnson v. Clarkson, 3 Rich. Eq., 305, at page 314.
But the will must clearly and definitely describe the papers intended to be incorporated, so that no room for doubt can exist as to what papers were meant. 40 Cyc., 1095, and cases cited in note.
"The description of it [the extrinsic paper, the three so-called deeds in the instant cause, I interpolate] in the will itself must be so clear, explicit, and unambiguous as to leave its identity free from doubt." In re. Young, 123 Cal., 337, 342, 55 P., 1011, 1012.
The intention of the testator to incorporate the paper or document in question must, however, clearly appear from the will, a mere reference thereto without evidence of such intention being insufficient. 28 R.C.L., 112, § 64.
From an exhaustive consultation of the authorities, which the exigencies of time will not permit me to cite in detail, it appears to be the universal rule, therefore, that, before an extrinsic document can be construed by the Courts as a part of a testator's will, three conditions must be met: First, the extrinsic paper must be in existence at the time of the execution of the will; second, the reference to, or description of, such extrinsic document in the will itself must be so clear, definite, and unambiguous that there can be no doubt of what paper or document was intended by testator; third, the testator must have intended himself that the extrinsic document should take effect as a part of his will, or there must have been an intention on his part that the property described in the extrinsic paper should pass under his will rather than under the extrinsic paper in question; and a mere reference to such extrinsic instrument, without an intent, apparent from the will, is insufficient.
In the instant cause, the first condition is fully met, since there can be no question but that the three so-called deeds had already been drawn and signed by the testator when he executed his will.
There is, however, in my opinion, a total failure of proof as to the second and third conditions. The only possible reference to, or description of, the extrinsic documents appears in Item 3 of the will, where testator, in instructing his executors as to what he desires them to do, says: "I hereby direct them to take charge of all my property not disposed of in special legacies or by deeds which I have executed, and to lease, rent, and let the real estate," etc.
Certainly it cannot be seriously contended that the words "or by deeds which I have executed" so clearly, definitely, and unambiguously describe the three so-called deeds in question that there can be no doubt of the identity of the extrinsic papers referred to. The words used might apply equally as well to any other deeds that the testator had executed, even upon a contract of bargain and sale to an utter stranger. No reference is made by the will to the dates of the deeds, to the names of the grantees, or to anything else that would clearly and definitely establish the identity of the deeds referred to by testator in Item 3, and it was admitted at the bar that testator had actually sold and disposed of certain real property by deed within a few years of his death.
And this brings me to the question raised as to the admissibility of parole evidence to identify the extrinsic documents in question, to identify the "deeds" referred to by testator; it being urged by counsel for defendants that such evidence is admissible, whereas plaintiff contends that such evidence is not admissible. In this connection, I should add that, during the trial, it was agreed that the evidence offered by defendants for this purpose should be received at that time, subject to plaintiff's objection thereto, and that the Court should later rule on the admissibility or inadmissibility thereof.
The true rule seems to be (1) that parole evidence is always admissible to establish the fact that the extrinsic document was actually in existence at the time the will was executed, and (2) that such evidence is also admissible to identify the extrinsic paper when the will clearly, explicitly, and unambiguously describes such paper. "While parole evidence is necessarily admissible to prove whether there is or is not in existence at testator's death any such instrument as is referred to in the will, and may be received to effect identification where the reference in the will is such as to make the paper referred to capable of identification, yet it is not admissible to show what paper was meant when the uncertainty and ambiguity as to the paper referred to is patent upon the face of the will." 40 Cyc., 1095, 1096, and cases cited in note 35. In the case at bar, I am of the opinion that the reference in the will is not sufficiently clear, definite, and unambiguous as to permit of the introduction of parol evidence for the purpose of identifying the three so-called deeds as the ones actually referred to by the testator in his will. See, also, 28 R.C.L., 212, where it is stated: "There must be an actual reference, and parole evidence is not admissible to identify the document referred to, where a will attempts to incorporate the contents of an extrinsic document without identifying it in a clear, explicit, and unambiguous manner."
But, if I be in error in my opinion (1) that the reference to, or description of, the extrinsic papers is too indefinite, and (2) that parole evidence is inadmissible in the instant cause for the purpose of identifying such extrinsic documents, surely there can be no error in my judgment that, nowhere in the will does the testator use any language manifesting an intention on his part (1) either that the extrinsic papers shall be incorporated into his will, or (2) that the property described in such extrinsic instruments shall pass under the will, rather than under such extrinsic documents.
It will be borne in mind that when he used the words "or by deeds which I have executed," in Item 3, he was giving directions to his executors as to leasing out his property; he was not then attempting to dispose of any of his property, nor was he then attempting to incorporate the so-called deeds into his will; he was simply telling his executors that he wanted them to rent out all of his property except such as he had disposed of (either by bargain and sale, or by deed of gift). He did not pretend to say that he wanted the grantees named in such deeds "to have" the property therein described; he did not pretend to say "I devise" unto the grantees named in certain deeds the property described therein, or "I confirm unto them the property mentioned in certain deeds which I have executed"; the most that can be said is that he was expressing an opinion that he had already disposed of certain property "by deeds which I have executed"; and it is universally held that the opinion of a testator, expressed in his will, that he had, by some instrument other than his will, disposed of certain property cannot operate (1) as a devise by implication, or (2) be held to show an intention to give by the will. It is true that, if the testator expresses the opinion in his will that he has disposed of certain property by some other clause of his will, when in fact he has not done so, a devise by implication is implied; but where his opinion, expressed in his will, is that he has disposed of certain property by some instrument other than his will, the same cannot operate as a devise by implication.
In Noble v. Tipton, 219 Ill., 182, 76 N.E., 151, 152, 3 L.R.A. (N.S.), 645, the recital in the will was to the effect that testator had "deeded" the home farm to his son, Thomas. It was held that this recital could not operate as a devise by implication; it being held: "Where a recital in a will is to the effect that the testator has devised something in another part of the will when in fact he has not done so, the erroneous recital may operate as a devise by implication of the same property, for the reason that it shows an intention to devise the property by the will; but where the recital is to the effect that the testator has by some other instrument given to a certain person named in the recital, property, when in fact he has not done so, such a recital does not disclose an intention to give by the will, and in such a case resort must be had to the other instrument and not to the will."
So, in the instant case, when testator, in Item 3, directed his executors to take charge of all property "not disposed of in special legacies, or by deeds which I have executed," his language did not disclose an intention to give by the will the property described in the deeds — the most that can be said of such language is that it amounted to an erroneous opinion or recital that he had conveyed away certain property by deeds which he had "executed," and, since it was his opinion that he had disposed of such property, not by the will, but by some other instrument, the language cannot operate as a devise by implication.
And, in Allenbach v. Ridenour, 51 Nev., 437, 279 P., 32, 33, the testator's will declared: "I have also by deed conveyed to my son * * * the certain ranch in Washoe County, formerly known as the Lyell ranch," etc. The Court said: "It is contended that, even though the deed was never delivered, the will refers to the deed as having been executed, and the deed being actually in existence at the time the will was made, and being identified, it becomes a part of the will as a devise after death. The contention is untenable. It is based on the declaration in the will * * * to the effect that the testator had by deed conveyed the Lyell ranch * * * to his son, C.D. Ridenour. It is obvious that the reference in the will, to the deed, does not adopt the deed as a part of the will, nor does it otherwise appear therefrom that the testator intended to give the property described in the deed by will. It expresses merely the opinion of the testator that he had conveyed by deed to take effect on his death. It cannot, therefore, be taken as a devise by implication." So here the language used does not manifest an intent to give by the will, but merely expresses an opinion that testator had disposed of certain property by deeds which he had "executed," which was an erroneous impression, since said deeds had not been delivered.
In our own case of Milledge v. Lamar, 4 Desaus., 617, it will be remembered that Robert Lamar, after a deed to his son, Thomas, to take effect at death of grantor, made his will, in which he used this language: "I will and bequeath to my son * * * all my lands, etc., as mentioned in a deed of gift bearing date the 1st of April, 1806, which deed being agreeable to my will, I now absolutely confirm unto the said T.L. Winfrey," etc., and the Court very properly construed the will and the deed together as one testamentary disposition, since (1) the extrinsic paper, the deed, was already in existence, (2) since it was explicitly described in the will as having been made to the son on a certain date, and (3) since the will itself disclosed an intention to give by will the property described in such deed — "I will and bequeath * * * all my lands as mentioned in a deed of gift, etc."
And so, also, in our case of Lawrence v. Burnett, 109 S.C. 416, 96 S.E., 144, 145, the testator, after having signed, but not delivered, a deed to his son Simeon, made his will, in which he said: "I give my son, Simeon Gowan, 1 Share, including four hundred dollars already advanced to him in land. When my estate comes into the hands of my executors, I will that they deliver the titles already executed by me to the four hundred dollars worth of land advanced to Simeon, Nancy and Thomas (the titles now being in my possession)." The language showed an intent to give by will — "I give my son, Simeon, etc." — the deed to Simeon was already in existence, though not delivered, and there was a sufficient description thereof in the will. And the directions to executors to deliver the titles were contained in the will, executed as such, and not upon an envelope, as in the instant case. In this case, also, it clearly appears that all the conditions necessary to be met to warrant the incorporation of an extrinsic document actually existed, in that (1) the extrinsic paper was in existence when the will was made; (2) the reference in the will to the extrinsic instrument was sufficiently definite to leave no doubt whatever as to what paper testator was referring to, the deed which he had made to his son, Simeon, and which was in testator's possession; and (3) the will showed clearly an intent to give the property to Simeon by will. Neither of these cases is in conflict with my opinion hereinbefore stated.
And, upon examination and careful analysis of the authorities relied upon by defendants, it will be observed that the cases cited by them are not in conflict with my views. In most, if not in every case called to my attention by defendants, it will be discovered that only one of the three conditions mentioned by me was in issue, and the Courts have frequently stated nothing more than that "an extrinsic instrument may be incorporated into a will by reference thereto," without discussing either of the other two conditions, because such other conditions, or limitations upon the general rule, were not under consideration in the particular case.
Indeed, a study of the facts of the several cases most relied upon by defendants will disclose that, in each instance where an extrinsic document has been adjudged to be a part of a testator's will, it appeared conclusively (1) that such extrinsic paper was in existence when the will was made, (2) that it was expressly referred to and described, either by a reference to its date, or by the name of the grantee, and (3) that the language of the will showed clearly an intent on the part of the testator to incorporate such extrinsic document into the will, or that it was his intent, as disclosed by the will, that the property described in the extrinsic instrument should pass under the will. And particularly is this true of Milledge v. Lamar, supra; Lawrence v. Burnett, supra; Newton v. Seamen's Friend Society, 130 Mass. 91, 39 Am.Rep., 433; Watson v. Hinson, 162 N.C. 72, 77 S.E., 1089, Ann. Cas., 1915-A, 870. In these cases, so strongly urged by defendants upon the Court, the facts were (1) that the extrinsic instruments were in existence, (2) they were expressly referred to and clearly described, and (3) there was a gift of the property by the will, or a manifest intent that the property described in the extrinsic documents should pass by will.
Without attempting, therefore, to go fully into several other cases, attention is called to the facts, and to the language of the Courts, in the following cases, some of which are almost identical in their facts with the instant cause: Noble v. Tipton, supra; Zimmerman v. Hafer, 81 Md., 347, 32 A., 316; O'Leary v. Lane, 149 Ark. 393, 232 S.W., 432; Bryan's Appeal, 77 Conn., 240, 58 A., 748, 107 Am. St. Rep., 34, 1 Ann. Cas., 393, 68 L.R.A., 353, with an elaborate note; Bryan v. Bigelow, 77 Conn., 604, 60 A., 266, 107 Am. St. Rep., 64, annotation at page 70; Bailey v. Bailey, 52 N.C. 44; Chambers v. McDaniel, 28 N.C. 226; Page on Wills, § 416; Jarman on Wills (6th Ed.), 491; Underhill on Wills, § 475; 40 Cyc., 1391.
Finally, it occurs to me that the following simple inquiry shows conclusively that testator, in executing his will, had no intention whatever that the "deeds" should be incorporated in, or take effect as a part of, such will: Since the will and the three "deeds" were all prepared on the same day, at the same sitting, in the same attorney's office, why was it deemed advisable to prepare the deeds; since testator was making his last will and testament, where was there any necessity for drawing and signing, without delivery, of the "deeds"? If he intended to dispose of the property (described in such "deeds") by his will, which he was then and there having prepared, and which he then and there signed with all the formalities required in the execution of wills, why did he not actually devise such property by the will; why prepare four (4) separate instruments at the same sitting — three of them purporting upon their face to be ordinary deeds of conveyance — to take effect as one will, when one instrument alone, the will, would serve such purpose? Undoubtedly, he intended to deliver such deeds before the Grim Reaper called him, or else, as many laymen believe, he thought that such "deeds" would take effect at his death, not knowing that a deed must be delivered in life to take effect as a conveyance. Where "deeds" and wills are executed on different dates, I can readily understand why a testator might incorporate in his will, by proper reference and description, a deed theretofore signed by him, but I am unable to understand why any maker of a will, desiring to dispose of his realty by will — no prior deeds being in existence — should go to the trouble and expense and roundabout method of having prepared and executing four separate instruments, on the same day, at the same sitting, to take effect as a single will. On the question of intention, it is not amiss to emphasize that, if an intention anywhere appeared that the "deeds" should take effect as a part of the will, such intention was declared in the written instrument indorsed upon the envelope in which the will and the "deeds" were inclosed, but that intention, if there were such, cannot avail defendants here, since the intention of a testator to incorporate into his will an existing extrinsic instrument must appear from the will itself.
In conclusion, it may not be improper to add that, in my earnest wish to give full force and effect to such intention as the testator may have had, I have devoted most of my study to the authorities offered on behalf of defendants herein, but I must be governed after all by the principles of law applicable and upon most mature deliberation and a lengthy consultation of precedents almost without end I am of the same opinion as that tentatively announced at the trial of the cause: (1) That the so-called "deeds" cannot take effect as conveyances because there was never any delivery thereof while the grantor was in life; (2) that they cannot be adjudged to be a part of the will because (a) they are not sufficiently referred to or described therein and because (b) it does not appear from the will itself that it was testator's intention that the property described in such extrinsic documents should pass by will rather than by the "deeds" or that he intended to incorporate them therein; (3) that while parole evidence was properly admitted to show that the so-called "deeds" were drawn and signed prior to the will, such evidence was not admissible to identify these particular instruments as being the ones intended to be incorporated, since the alleged reference to them in the will was too uncertain and indefinite — the most that could be said of such reference to "deeds" is that testator was expressing an erroneous opinion that he had disposed of certain property "by deeds which I have executed," when, in fact, he had not so done.
It is, therefore, ordered and adjudged that the real property mentioned in the complaint and described in the three so-called "deeds" did not pass by such instruments; that the said "deeds" are null and void; that the defendants J.W. Byrd and F.S. Holleman, as executors, be permanently enjoined and restrained from delivering such so-called "deeds," or any of them, to the grantee, or grantees, therein named; that they be, and they hereby are, required and directed forthwith to surrender said instruments unto the Clerk of Court of Oconee County, S.C. for cancellation; and that the said Clerk of Court be, and he hereby is, required and directed forthwith to cancel each and every of said three "deeds."
Further ordered that the costs of this action be taxed against defendants, but that the same be paid by the executors defendants out of the funds of the estate of the said R.M. Richardson, deceased.
Messrs. Hughs Hughs, for appellants, cite: Intention of testator should come foremost: 4 DeS., 625; 85 S.C. 388; 46 S.C. 262; 24 S.C. 229. Oral evidence is admissible to show either absence or presence of testamentary intent: 45 A.L.R., 839; 46 N.C. 150; 13 N.H. 371; 2 McCord, 307; 3 DeS., 508; 61 S.C. 155; 123 Cal., 337. If paper referred to in will can be identified by clear and satisfactory proof takes effect as part of will: 28 R.C.L., 64; 40 Cyc., 1094; 1 N. McC., 385; 109 S.C. 416; 70 S.C. 108; 29 S.C. 533. Wherever deed refers to anything foreign to itself, it must be identified by parole evidence: 1 McCord, 48; 1 McCord, 261; 1 Rich. Eq., 444; 77 S.C. 456; 149 S.E., 146. No particular form required for will but intention is ruling factor: 113 S.C. 416; 36 S.C. 38; 2 N. McC. L., 694; 146 S.C. 7; 143 S.E., 362; 8 S.C. 336; 4 Strob., 190. Testamentary disposition may consist of more than one paper and several papers may be probated at different times: 96 S.C. 86; 36 Colo., 407; 92 Va., 723; 90 Neb. 622; 321 Ill., 198; 151 N.E., 577; 53 A.L.R., 515. Effect of codicil: 4 Rich. Eq., 457; 4 Rich. Eq., 260; 28 R.C.L., 156; 121 A.S.R., 100; 28 R.C.L., 198; 36 L.R.A., 112; 40 Cyc., 1217; 4 DeS., 303.
Mr. R.T. Jaynes, for respondent, cites: Will must show that testator intended to give by it according to extrinsic instrument: 157 Pac., 407; 107 La., 449; 128 So., 273; 343 Ill., 476; 175 N.E., 781; 60 N.E., 76; 175 N.E., 554; 31 N.E., 13; 168 N.E., 900; 66 A.L.R., 1062; 3 L.R.A. (N.S.), 645; 55 Pac., 1011. Parol evidence inadmissible: 82 S.C. 402; 65 S.C. 390; 28 N.C. 226; 112 N.W., 210; 201 Ala., 174; 70 So., 700; 118 S.C. 523.
June 16, 1932. The opinion of the Court was delivered by
This is a most interesting case, and its proper decision is a matter of far reaching importance. The Circuit decree, which will be reported, sets out the history of the case, and it need not be repeated here. The case has been presented with thoroughness and rare ability. The decree of Judge Johnson evinces a close study of the evidence and the law, and it is a clear and strong exposition of his views, in which in the main this Court concurs. Because of its interest and importance we have given it thorough consideration and study.
The primary question involved in the case is, Did the testator intend to incorporate in his will, as a part thereof, the deeds he had prepared, and which he signed prior to the execution of the will, and on the same day, by which he sought to convey certain real estate to his son, Elzie L. Richardson, the respondent herein, and certain other real estate to his daughter, Mrs. Ella R. Ballenger, who are appellants herein? Related to this question is the further question, Did the presiding Judge err in excluding certain testimony offered by appellants of the circumstances attending the executing of the deeds and the will, as evidence of the identity of the deeds mentioned in the will, and as indicative of the intention of the testator to incorporate the deeds in the will? If it be held that the rule in this respect was rather rigidly enforced, nevertheless, we could not say it was reversible error. The testimony offered was taken subject to objection, and appears in the transcript of record, and it is not sufficient to overcome the evidence, inherent in the will itself, that the testator did not intend that the deeds should be incorporated in his will, become a part thereof, and speak from the day of his death, as his will must do. The deeds undertook to dispose of all his real estate. Yet in the body of his will he said:
"Item Three: It is my will that my estate shall be held intact by my executors until my directions can be carried out, and during the intervening period, I hereby direct them to take charge of all my property not disposed of in special legacies, or by deeds which I have executed, and to lease, rent, and let the real estate, and keep my money invested so as to produce an income: and I then direct them to collect the rents, income and profits of all kinds and out of them to pay all taxes, insurance on buildings, and general upkeep on the property in their charge only." (Italics added.)
The testator then directs that out of the income of the estate certain bequests be paid charitable institutions therein named each year, "until the general division of my estate is made." Further he leaves it to his executors to determine whether, if there be any balance of the annual income, "it shall be paid to the residuary legatees and devisees at the close of each annual period, or whether they shall add it to the corpus of my estate for distribution at the final division."
In the sixth item he gives his executors power, if it should become necessary, to sell any real estate which he has not disposed of, either at private or public sale, etc.
This will was executed on the 20th day of April, 1927. Five months thereafter, September 20, 1927, he made a codicil to his will, by which he made a larger provision for his afflicted granddaughter, Myrtis Richardson; to accomplish this end he gave to his executors this power: "I direct my executors to pay to her at such times as they deem best, one-half of the income of the storeroom in the Town of Seneca just east of the Palmetto Hotel Building." (Italics added.)
It is undisputed that all of his real estate was "disposed of" by the deeds which he signed the day the will was drawn, but which were not delivered in his lifetime. It is conceded that they cannot operate as deeds, and that issue does not arise here.
An analysis of the terms of the will and the codicil leads to the inevitable conclusion that the testator intended the deeds he had prepared to operate as deeds and to be delivered at the final distribution of his estate.
The estate was to be held intact by his executors till his directions were carried out; meantime the executors were to take charge of all of his property, lease, rent, and let it, to produce an income; out of the rents, income, and profits of all kinds to pay taxes, insurance on buildings, and keep up the property. It would be utterly impossible to do these things if the deeds were incorporated in the will and spoke from the death of the testator.
That he contemplated that the estate be held intact, which included the holding of the deeds by the executors, is made manifest by the provisions of Item 3 of the will that the executors should pay the bequests to certain charitable institutions, annually, " until the general division of my estate is made," and by the provision of Item 4 that the executors might in their discretion pay to the residuary legatees any annual balances left from the income, "or add it to the corpus of the estate and pay it, at the final distribution."
If the testator intended that the deeds should be incorporated in the will, he would never have given his executors power to sell the real estate, all of which was included in the deeds. He knew the deeds had not been delivered. As a man of business he must have known that they were inoperative as deeds until they were delivered. Therefore, when he uses in connection with the gift to the executors the power to sell any real estate "which I have not disposed of" the fair inference is that he meant real estate which he might sell or dispose of between the time of making the will and his death. The deeds were undelivered; he could change them at will, just as he could change his will. That he contemplated the real estate should remain in the hands of his executors till the final distribution of his estate is made further manifest by the provision in the codicil to the will which directs the executors to pay to Myrtis Richardson one-half of the income from the storeroom in the Town of Seneca, which storeroom was included in the deed which he had made to his son, Elzie Richardson.
In the light of these things which are included in the will, we must conclude that the testator never intended that the deeds should be included therein.
The Court affirms the decree of Judge Johnson.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICE STABLER and CARTER and MR. ACTING ASSOCIATE JUSTICE COTHRAN concur.