[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 479 March 26, 1918. The opinion of the Court was delivered by Action to set aside a written agreement between sundry persons upon the ground that it was entered into under a mistaken impression of the law on the part of some of the contractors. The Circuit Court denied the relief prayed for and dismissed the complaint. The plaintiffs have appealed from that judgment.
The primary issue in the cause is whether, as matter of fact and law, there was such a mistake as ought to be relieved. That question decided, other issues in the case arise out of the construction of Mrs. Bacon's will. Those we denominate secondary issues.
There are exceptions by nearly all the parties; these we shall compass, not by number or in detail, but in substance. The cause is sequel to another cause. The counsel for plaintiff stated at the bar that this cause is the result of the Court's conclusion in Boyce v. Moseley, 102 S.C. 364, *Page 505 86 S.E. 771. A history of the transaction out of which the instant cause springs is sufficiently stated in the above cause, and will not be repeated here. It now definitely appears that when Mrs. Bacon devised the lands in issue to Toneys she conveyed to them a title in fee simple. Boyce v. Moseley,supra. And had the Toneys before the decision of that cause stood their ground and asserted that title in them from Mrs. Bacon against Boyce and his coplaintiffs and against Moseley, too, they would have won the valuable stake which was at issue — some 500 acres of land worth some $25,000.
Beyond cavil there are cases where parties have been relieved from mistakes, both of fact and of law; but there are not many such in this State. It would be an idle performance to review the cases which have been cited both to sustain and to reverse the decree. We are of the settled opinion, upon consideration of the testimony, that the plaintiffs are not entitled to the relief they ask. The law is always predicated on the facts; we turn, therefore, to the testimony.
Soon after Mrs. Bacon's death on December 6, 1913, Moseley took possession of the land in dispute and claimed it for himself. In the same month, December 30, 1913, the instant agreement was entered into by the Toneys and Moseleys, and pursuant to that agreement the parties in the following month of January, 1914, executed each to the other mutual quitclaim deeds. Thereby Moseley got 490 acres and the Toneys got 69 acres of the home place and some 400 they had aforetime acquired by purchase. Within a few months thereafter the Boyces sued Moseleys and the Toneys to recover the two parcels of land first referred to, and the Toneys and Moseleys made a common cause to defeat the Boyces, and did so.
It was argued in Boyce v. Moseley for the Toneys, amongst other and contrary contentions, it is true, and as one of the *Page 506 defendant's postulates, that Mrs. Bacon was the sole heir at law of Gallman and had the fee; that she conveyed it by will to the Toneys; and that they conveyed it by deed to Moseley. That view was sustained by this Court, and for the reason stated it was not new to the Toneys, and the decision inBoyce v. Moseley could not have surprised them. We revert now to the agreement and the circumstances under which it was made, as mainly revealed by the testimony of Governor Sheppard. And in this connection it was altogether proper that the Circuit Court ordered the testimony of this gentleman and of Mr. Henderson to be printed as it was delivered on the stand, for much depends on the testimony. The plaintiff's exceptions thereabouts are overruled.
Governor Sheppard's character as a man and as a lawyer gives to his testimony very high value. Referring to what took place betwixt himself and the Toneys just prior to the making of the agreement, he said:
"My opinion was that the strongest view of that deed from Harmon Gallman was that Mrs. Angeline Bacon, upon the death of her father, became the owner under the statute of distributions of the whole estate, notwithstanding the provisions of the deed; and I believed that that was the strongest view of it. I was not certain about it. I apprehended that I might be mistaken; but it was the dominating view of my judgment. I found out in the investigation that Mr. D.S. Henderson was of a different opinion. And I regarded him as one of the best lawyers in this State, and the knowledge that he differed with me shook to that extent my confidence in my opinion. I ascertained that J.W. Thurmond of this bar, one of the best lawyers that has been at the bar since I have been practicing here, was of the opinion that my view could not be sustained, and he told me so out of his own mouth. I remember the place; he met me in front of the store occupied by Mr. Reeves at that time, and he said: `Don't be too certain about that merger *Page 507 decision you are depending upon.' And Mr. Henderson's and Mr. Thurmond's opinion — and Mr. Nicholson I knew to be of the same doubt as to the construction of the deed — and I knew that Tompkins Wells were then contemplating a suit to the contrary, and that subsequently before this settlement was made Mr. Evans was of the same opinion — and the whole bar was against me and my view of the matter — and, of course, I was in doubt. It would have been a piece of reprehensible presumption for me not to have doubt, in view of the opinion of these other distinguished lawyers, that my opinion was not the proper view of the case.
"I went to Columbia to consult Robert W. Shand, who has been a devoted personal friend of mine since 1879, when I married my wife in the town he lived. And I have time and again in the course of my somewhat important professional experience taken the trouble to go to Columbia and get Mr. Shand's view upon cases in which I had deepest concern. * * * And when that question came up, and these gentlemen all differing with me about my view of that deed, I went to Columbia, and I went with my brief of authorities with me, and Mr. Shand and myself, in his office, read the case of Rochell v. Tompkins; and the leading case that distressed me in my consideration of the matter was the case ofMcCreary v. Coggeshall, 74 S.C. 42, 53 S.E. 978, 7 L.R.A. (N.S.) 433, 7 Ann. Cas. 693. When I read that case from start to finish, and reread it time and time again, my apprehension that my first view of this matter began more and more to disappear, to my judgment. And when I appeared before Mr. Spann Toney, Mr. Boatwright, in Mr. Nicholson's office, and Mr. Kirkland and Mr. J.W. Cox were present, representing some of the parties, in my recollection, when we met to consider whether or not we should have a settlement with Mr. Moseley and Mr. Henderson (with Mr. Moseley through Mr. Henderson), as they were claiming the whole of it, as I understood, the second tract upon the principle that there were no words of limitation in *Page 508 the grant to Mrs. Bacon. And in connection with that view of Mr. Henderson, Mr. Kirkland, who is now in my presence, phoned to me from his home, wherever it was, and asked me if I had read the case of McMillan v. Hughes,88 S.C. 296, 70 S.E. 804. I told him that I had. He says, `In my judgment under that case we have got no case at all.' I said, `Mr. Kirkland, don't let that disturb your mind; that case isn't bothering me a bit.' He is present here. The case of McMillan v. Hughes, 88 S.C. 296, 70 S.E. 804. I told him he need not be disturbed about that case affecting one tract.
"When we met in Mr. Nicholson's office to consider this matter, I told them that the leaning of my judgment was that we could win the whole business, notwithstanding the opinion of these other lawyers to the contrary — the opinion of these other good lawyers. I told them that I had gone to Mr. Shand in Columbia and submitted it to him, and that Mr. Shand had told me that he agreed with me, but that he told me he did not know what view the Court would take of the case, and that if my clients could get without litigation one-half of that whole estate, in his judgment, it would be advisable to take it. I stated that that was Mr. Shand's view, and I left it to them to determine whether or not they should fight for the whole of it or get one-half of it for the other in settlement.
"I told them then and there: `If you gentlemen say so, I will fight for the whole of it, and if I don't win I will have no compensation for my services. I will make the issue for the whole land upon the basis of 10 per cent. of what I win of it.' I told them that, sir, and repeated it. And after the decision of the Supreme Court had been rendered, and after they had decided as they decided, Mr. Kirkland, in Mr. Nicholson's office, in the presence of Spann Toney, Mr. Boatwright, and Mr. Nicholson, stated, `You can't blame Mr. Sheppard for it, because he told you at the start that in *Page 509 his opinion he could get the whole business.' That was after the decision was rendered."
Wise men are not dogmatic about the construction of deeds to land. Those who write them oftener than otherwise use words and phrases which they do not understand. Judges professing to understand these words and phrases declare the maker's — we shall call it constructive — intention when there is often grave doubt if such was the maker's real intention.
Governor Sheppard put the Toney parties to elect what they should do: (1) Stand on their right and claim all or lose all, or (2) secure half by a compromise agreement. They decided on the latter course. It is true Spann Toney testifies that he believed that the Courts would award the Toneys both parcels of land, and that he desired that such a fight for it should be made, but that he deferred to Governor Sheppard's opinion, and that gentleman advised a compromise. But this layman could have no opinion about what their legal rights were. He could not judge if the case was doubtful. They had for that issue to rely on the opinion of counsel. It is, therefore, idle for him to declare after the event that he thought the Toneys had a good title.
If he did think so, then he did that which he intended to do; he made no mistake, and can have no relief on that ground. William Toney testified that Governor Sheppard told him after conference with Mr. Shand: "That Mr. Shand said he could not tell what the Supreme Court would hold in regard to this deed, but that if the Toneys could obtain a settlement giving them one-half of the entire lands, both tracts, he would advise them to take it."
That testimony tends to prove that the witness, upon the advice of eminent counsel, balanced the chances and made his choice. For that there can be no relief. *Page 510
The witness, Kirkland, a member of the bar, testified just the opposite to Spann Toney. He testified: "I did not regard at that time, sir, that my wife owned any interest whatever in that tract of land."
Mr. Kirkland further testified: "I told them we could make the fight for the whole thing, although I did not think we could win it."
In December, 1913, Mr. Kirkland wrote to Spann Toney a letter, and therein declared, touching the tract of 400-odd acres the Toneys got by deed mediately from the Bacons, "As to the tract Mr. Toney bought from Mrs. Bacon et al., there is no law on earth to keep his children from holding." Mr. Kirkland was, therefore, of the opinion that the compromise was a vain thing. He was of the opinion that the Toneys already had a good title to their parcel of land, and that Moseley already had a good title to his parcel of land and there was no need for each side to make quitclaim deeds to the other side.
This gentleman, representing his wife, acted on that opinion of the law which turned out to be partly wrong. For that error of judgment his wife is surely not entitled to relief. The appellants' counsel stated at the bar that be put large reliance upon the case of Lawrence v.Beaubien, 2 Bailey, 647, 23 Am. Dec. 155, decided in 1831. It is true that case gives him chief support, and the issue of law it decides is not appreciably different from the appellants' contention here. But the facts in that case are meagerly reported, and a slight modification of the facts often casts a very different horoscope of the law, for the law follows the facts. As late as 1886 this Court declined to apply the doctrine of Beaubien case to facts which might have warranted its application. Norman v. Norman, 26 S.C. 47,11 S.E. 1096. And the Norman case did not followLowndes v. Chisolm, 2 McCord Eq. 455, 16 Am. Dec. 667, decided in 1827, and which, like Beaubien's case, excused a *Page 511 mistake of law. We are distinctly satisfied that the plaintiffs in good faith with full knowledge compromised a reasonably doubtful question, and they must abide the consequences.Keitt v. Andrews, 4 Rich. Eq. 350.
We now come to the secondary issues. The Moseleys rely, of course, mediately on Mrs. Bacon's title; the Moseleys got title directly from the Toneys; the Toneys got title by Mrs. Bacon's will. The third item of that instrument makes the question now up. It reads:
"I devise my home place on which I live, and on which I have lived for many years, containing five hundred acres, more or less, to William Toney, Mrs. Ione Kirkland, Hattie Toney, H. Spann Toney and M. Dantzler Toney — children of my friends, Mark Toney and Mary H. Toney; the said tract of land to be divided among the said five children share and share alike, and in fee.
"In making this devise I exclude Mark Toney, the youngest child of my friends, Mark and Mary H. Toney, for the reason that he is so generously provided for in the will of his father."
It is the time-old question whether the devise was to individuals or to a class. The relevancy of the inquiry lies in the fact that one of the devisees, Dantzler Toney, died before the will became operative, and the devise to him lapsed or not according to Dantzler's title to it. The question puts in issue some $10,000. The Toneys are not interested in that issue.
The Circuit Court thought the devise was to a class; we conclude it was to the individuals. The only words in the will to suggest the devise to a class are those which after a devise to five named persons follow a dash of the scrivener, thus, "— children of my friends, Mark and Mary H. Toney." The punctuation is significant; the dash is sometimes used in the sense of the parenthesis, and it was manifestly so used *Page 512 here, "by way of comment inserted in a sentence which would be grammatically complete without it." Webster.
The words were only used as descriptio personae, as the phrase goes. It is significant that the scrivener adopted the same phraseology in the bequest to Mrs. Wright and Mrs. Harrison; these ladies were described as the wives of John Wright and P.B. Harrison. All the balance of the item indicates a plain intention to devise the property to individuals. The circumstance in the will that Mark was excluded points to the inference that the others took individually, and that the testator had the individuals in mind, both those to take and the one not to take. The Court quite unwarrantably, we think, counted that circumstance as one making for a devise to a class.
The Court put stress upon other circumstances, outside the will, to sustain its view. Mrs. Bacon made a codicil to her will after Dantzler died, and in that instrument she made no mention of the fact of Dantzler's death, and she made no direction springing out of that fact. The inference is not reasonably necessary that Mrs. Bacon had thereby concluded that no further direction was necessary because Dantzler's share was swallowed up by the class; she might have concluded that such share went under the rest and residue clause.
The respondent's suggestion is that the law presumes that the testatrix, when she made her will, intended to make a complete disposition of her estate. That is true, and the testatrix did that; the fourth item disposes of any residuum, and that carried any lapsed devise.
Nor is there any force in the respondent's suggestion that before the instant will was made Mrs. Bacon had made another will by which she left the estate to Mark Toney, the father of the plaintiffs. None of these circumstances is sufficient to overcome the plain words of the devise to William, Ione, Hattie, Spann and Dantzler with *Page 513 the exclusion of Mark, of the said tract of land, share and share alike.
There is no issue betwixt counsel about the rules of construction; counsel only differ about the application of those rules to the instant case. That is generally the sole cause of litigation. The rules of construction in a case like this are well stated in Jackson v. Roberts, 14 Gray (Mass.) 546, and there is no need to restate them here.
Another secondary issue arises out of the fourth item of the will of Mrs. Bacon and the codicil which amended that item. In that issue the Toneys are not interested; it concerns only Mrs. Harrison and Mrs. Wright, whom we shall refer to as the devisees, on one side, and Mrs. Mobley and Moseley, whom we shall refer to as the heirs, on the other side, and it is consequent upon the lapse of the devise to Dantzler and the reversion of that devise back to Mrs. Bacon.
The codicil is a modification of item 4 of the will, and the expressed purpose of the modification was to give a legacy of $500 to Charles D. Kenny, a friend of the testatrix. The fourth item of the will reads thus:
"(4) All the rest and residue of my property, of every kind and description whatsoever and wheresoever situated, I give and bequeath unto my two friends, Carolina V. Wright, the wife of John Wright, and Angeline B. Harrison, the wife of P.B. Harrison (the property in this clause mentioned to be divided between the said two ladies, share and share alike)."
The words we have put in parenthesis were the only words of this item omitted from the codicil. The devising part of the codicil reads thus:
"Fourth. All the rest and residue of my property, of every kind and description whatsoever and wheresoever situate, I *Page 514 give and bequeath unto my friends, Carolina V. Wright, the wife of John Wright, and Angeline B. Harrison, the wife of P.B. Harrison (after the payment of the sum of five hundred dollars to my friend, Charles D. Kenny; my purpose being to give all of my personal property of every kind to these two ladies, except the sum of five hundred dollars to be paid to Charles D. Kenny by my executor as soon after my death as practicable)."
The words we have put in parenthesis constitute the new matter put by the codicil into item 4 of the will. It will be conceded that the lapsed devise descended to the heirs unless it went under the terms of the will to the devisees. And it will be conceded that a general residuary clause will carry both real and personal property of a testator.
The devisees make their claim under the general residuary clause of the fourth item. As that item reads it is plainly a general devise of the residuum. The heirs, however, assert that the codicil so modified that item as to convert it into a devise of the residuum of personal property alone, and counsel for the heirs call that a "qualified and restricted residuary clause." And counsel says that such restricted devise of the residuum only carried to the devisees, by the words of the instrument, all the testatrix's "personal property," and the lapsed devise to Dantzler was realty.
We are of opinion that the lapsed devise was realty at Mrs. Bacon's death, and we are further of the opinion that it went under the will to the devisees. The words of the first half of the codicil, which we shall refer to as "old matter," and which create the gift, are as comprehensive as the words of the will; indeed, they are the same words. The words of will and codicil are "all the rest and residue of my property, of every kind and description whatsoever and wheresoever situate, I give," etc. Manifestly, these words in the codicil by themselves are sufficient to carry the lapsed *Page 515 devise to the devisees, and had the testatrix stopped there the instant question would not have arisen, but the testatrix did not stop.
Looking directly at the codicil, it is made up (1) of a prologue and (2) of a devise. These in an inverse order. Looking directly at the devise, it is made up of two clauses; the first clause expressly gives "all the rest and residue" to the devisees before mentioned; and the second clause purposes to give "all my personal property of every kind," except $500 first to Kenny, to the same devisees.
It is true that, if a later provision in a will is totally inconsistent with a former provision, then the last expression governs. But if both expressions may be harmonized so as to give force to the whole instrument, that ought to be done. Petters v. Petters, 4 McCord 151.
We are of the opinion that the two clauses are not irreconcilable, so that one must absolutely yield to the other. The first clause expressly gives "all the residue," which means real and personal and mixed property. The second clause does not refer expressly or by necessary implication to the residuum, but to "my personal property." In the modified first clause the testatrix was providing chiefly for the payment of a legacy to Kenny, and expressly in money; and in that connection the testatrix declares in the second clause that except the $500 to Kenny the lady devisees should have all (the balance) of her personal property.
Reverting now to the prologue, it confirms the view we have expressed. It is true the testatrix intended by the codicil to "modify" the fourth item of the will; the codicil so declares in the two places. But the prologue also declares in what respect the testatrix intended to make the modification; the words to that end are: "I desire to modify the provisions of article 4 * * * so as to provide for my friend, * * * Kenny." The dominating intention of the testatrix *Page 516 in making the codicil was to provide a pecuniary legacy for Kenny, and she threw in the further declaration that all of personal property should go to the ladies to whom she had aforetime expressly devised her entire residuum, except that which she first gave to Kenny. Thus all the directions of the will are harmonized and executed.
Our judgment is the decree of the Circuit Court is affirmed and modified in the respects we have indicated, and the cause is remanded to that Court to carry out our views.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and FRASER concur.
MR. JUSTICE HYDRICK did not sit.
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