March 30, 1920. The opinion of the Court was delivered by This action involves the construction of a will and codicil. On the 26th of September, 1899, William H. Dent made his will. In the first clause he directed the payment of his debts. In the second clause he bequeathed certain legacies to two of his wife's relatives. The third and fourth clauses are 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."
On the 23d of April, 1910, the testator made the following codicil to his will:
"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 place of the said Benjamin T. Dent, deceased."
The testator died in 1913, unmarried. His brother, Benjamin T. Dent, died, after the making of the will, but before the testator executed the codicil, leaving several children, one of whom, Samuel T. Dent, was named in the codicil as an executor. *Page 419
The main question in the case 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.
The following rule of construction is announced in Roundtreev. 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 words 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 *Page 420 distinguished from the ordinary, meaning, there may be difficulty in ascertaining the meaning."
The appellant's attorneys in their argument cite the following cases from this State: Cureton v. Massey, 13 Rich. Eq. 104, 94 Am. Dec. 151; Pratt v. McGhee, 17 S.C. 428;Roundtree v. Roundtree, 26 S.C. 450, 2 S.E. 474; Howzev. Barber, 29 S.C. 466, 7 S.E. 817; Lott v. Thompson,36 S.C. 38, 15 S.E. 278; Rivers v. Rivers, 36 S.C. 302,15 S.E. 137. To the same effect are the cases of Pegues v.Pegues, 11 Rich. Eq. 554; Suber v. Nash, 84 S.C. 12,65 S.E. 947.
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 *Page 421 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. Roundtreev. 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.
Affirmed. *Page 422
MESSRS. JUSTICES WATTS and GAGE concur.
MR. JUSTICE GAGE. There are no technical controlling words in the will to fix a constructive intent of the testator and to defeat the manifest real 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 the intent. Therefore, I concur with the Chief Justice and vote for affirmance.