The opinion of the court was delivered fey
Mr. Chief Justice McIyer.This was a proceeding for the settlement of the estate of Jane Taylor, originally commenced in the Court of Probate, and carried thence, by appeal, to the Court of Common Pleas. It seems that Jane Taylor, who was a married woman up to the time of her death, being entitled, as we must presume, to a separate estate, departed this life in December, 1888, having first duly made and executed her last will and testament, a copy of which is set out in the “Case,” and which, together with the decree of the Circuit Judge, should be embraced in the report of this case. At hex death the testatrix left surviving her, her husband, James Taylor, and the eight children named in the will, all of whom are parties to this proceeding. Prior to her death the testatrix had,' by deed, conveyed to each of her children, except the appel- . lants, Hannah Kirkpatrick and Annie Taylor, a tract of land, which was valued by three appraisers appointed by the testatrix. After her death two of said appraisers (the third being dead), with another, appointed by the executor, put a valuation upon the land devised to the appellants, Hannah Kirkpatrick and Annie Taylor. In the course of the proceedings in the Court of Probate, Annie Taylor set up a claim for set-vices rendered the testatrix during her lifetime, as “cook, milker, and housekeeper,” which was rejected by the judge of probate, who rendered his decree to that effect, and placing the construction upou the terms of the will as contended for by the respondents. Upon appeal to the Circuit Court, the *168decree of the judge of probate ivas affirmed, with one slight modification, which is not material to the present inquiry, and judgment to that effect having been rendered, the defendants, Hannah Kirkpatrick and Annie Taylor, appeal to this court upon the several grounds set out in the record.
Thesegroundspresentthefollowingquestious: 1st. Whether the Circuit Judge erred in proceeding to decide the question as to the validity of the claim of Annie Taylor after she had demanded a trial by jury. 2d. Whether there was error in rejecting said claim. 3d. The general question as to the proper construction of the will, which will be stated more specifically in the progress of the discussion.
1 First, then, was there error on the part of the Circuit Judge in proceeding to decide the question as to the validity of the claim of Annie Taylor after she had demanded a trial by jury. Although the “Case” does not show that the Circuit Judge made any order, or even ruling, as to the right of the appellant to a trial by jury, yet as he did proceed to determine the validity of the claim without a jury, we will not decline to consider the question of appellant’s right to a trial by jury, notwithstanding this apparent informality. It must be remembered that this was a proceeding originally instituted in the Court of Probate for the settlement of an estate, in the progress of which this claim against the estate of the testatrix was presented by one of the parties interested in the estate. The appellant did not institute her action against the executor for the recovery of the money alleged to be due her. on said claim, as she might have done, but, on the contrary, she elected to submit her claim to the adjudication of the Court of Probate, and when that court decided against her, while she had the right of appeal to the Circuit Court, it does not follow that she would be entitled to atrial by jury, as she unquestionably would have been if she had elected to enforce her claim by an ordinary action at law against the executor. On the contrary, having chosen to submit her claim to the adjudication of a tribunal which had no means of securing a trial by jury, she could only claim such rights as are accorded to those who submit themselves to such tribunal.
*169Those rights, so far as this question is concerned, are defined by section 57 of the Code of Procedure, which secures to any person interested in any final order or decree of the Court of Probate the right of appeal therefrom to the Circuit Court, and section 60, which declares that the last mentioned court, when the appeal is perfected, “shall proceed to the trial and determination of the question according to the rules of law; and if there shall be any question of fact or title to land to be decided, issue may be joined thereon under the direction of the court, and a trial thereof had by a jury. ’ ’ It will be observed that the language is permissive—not imperative: “Maybejoined thereon under the direction of the court, and a trial thereof had by a jury.” It implies that when any question of fact arises under an appeal from the Court of Probate, the court to which the appeal is addressed may frame an issue for trial by jury; but it does not imply that, whenever any question of fact arises upon such an appeal, either party has a right to demand that such question shall be tided by a jury. Again, section 274 of the Code provides that “an issue of fact, in an action for the recovery of money only, * * * must be tried by a jury, unless a jury trial be waived,” &c.; and section 275 declares: “Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury,” &c. So that it is apparent that atrial by jury of any question of fact which arises in the progress of any proceeding cannot be demanded as a matter of right, but only where “an issue of fact, in an action for the recovery of money only, or of specific real or personal property, ’ ’ arises. Now, as it is quite certain that the issue of fact, of which appellant demanded a trial by jury, did not arise in an action for the recovery of money only, it is very clear that there was no error on the part of his honor, Judge Witherspoon, in refusing or ignoring the demand for a trial by jury.
2 The next inquiry is whether there was error in rejecting the claim. We do not think so. To say nothing of the fact that this is an appeal from the concurring judgment of the Judge of Probate and the Circuit Judge upon a question, of fact, we think the testimony fails to show any such *170express agreement as would be necessary to raise a legal obligation to pay for services rendered by a child to a parent. Ex parte Aycock, 34 S. C., 255. But, in addition to this, we think if the appellant had any claim at all, it would be against her father, who was bound to provide for his family, and not against her mother’s estate.
3 We come, then, to the general question as to the proper construction of the will. By the second clause of her will, the testatrix directs that the 210 acre tract of laud be sold by her executor. By the third clause she directs that all of her personal property be sold or converted into money. By the fourth clause she directs that “the proceeds of the real estate, and of the personal property,” shall be divided equally amongst her eight children, naming them; and in a separate paragraph of the same clause we find the following language: “My desire is that all my children shall be made equal, and in making the said division, all advancements heretofore made to them in land are to be accounted for by them in accordance with the terms of the deeds of conveyance to them respectively.” The fifth clause reads as follows: “I have not included in this, my will, my home tract, containing four hundred and fifty acres, as the said tract I intend to convey to my daughters, Hannah Kirkpatrick and Annie Taylor, by deed as to others, viz., to Hannah Kirkpatrick, the lower part, adjoining lands of Jane Johnson, estimated to contain two hundred acres, more or less, by lines which I have indicated, and of which a plat is to be made, and to Annie Taylor the remainder of said tract, estimated to contain two hundred and fifty acres, of which a plat is to be made, and a deed of conveyance (subject to the enjoyment and use of my husband, James Taylor, of the dwelling house and one hundred acres attached, of the tract set apart and allotted to said Annie Taylor), and I do hereby give and devise the above named tracts to said Hannah Kirkpatrick and Annie Taylor, as above directed, in the event my death should occur before making the deeds of conveyance to them, as above indicated. The one hundred acres of the tract given to Annie Taylor, of which the use and enjoyment *171is given to James Taylor, is to be during liis natural life or widowhood.”
Inasmuch as the testatrix died before making the deeds which she contemplated making to the appellants, it is very obvious that the alternative provision which she made for them, in the event of her death before making the deeds, took effect, and hence that the appellants became entitled to their lands as devisees and not as grantees of the testatrix, while all the other children took their lands as grantees and notas devisees. Now, as the doctrine of advancements has no application in a case of testacy (Manning v. Manning, 12 Rich. Eq., 428), it is very clear that a devise cannot be treated as an advancement, unless the testator, as in the case just cited, “has made the law of his own property” in such terms as shows his intention' that such doctrine shall apply. It is very certain that the testatrix here, has not expressly declared any such intention, so far as the devises to the appellants are concerned; and, therefore, the practical inquiry is whether such an intention should be implied from the language used by the testatrix, read in the light of the surrounding circumstances.
It will be observed that the testatrix, after providing in the second and third clauses of her will for the sale of the real estate therein mentioned, and for the sale and conversion into money of all of her personal property, proceeds, in the fourth clause, to direct that the proceeds of suchsales shall be divided equally amongst all of her children; and if the will had stopped there, then there would be no doubt that each child would be entitled to an equal share of the proceeds of such sales, without regard to the value of the land previously given to some of the children, or to that in a subsequent clause devised to the others. But the will does not stop there, and, on the contrary, in the second paragraph of the fourth clause, the testatrix goes on to declare, not simply her desire that all her children shall be made equal, but explains how such equality is to be effected, using for that purpose these words : “In making the said division” (meaning, necessarily, not the division of all her property, but simply that which, she had just directed to be divided, to wit, the proceeds of the sales), “all *172advancements heretofore made to them in land are to be accounted for by them in accordance with the terms of the deeds of conveyances to them respectively.” Now, while this language is amply sufficient to show that the testatrix intended that such of her children as had received deeds for land should account for the value thei-eof in mating said division, we do not see how such language can be regarded as expressing, or even implying, an intention that such of the children as had not received deeds for land should be required to account for the value of land devised to them in a subsequent clause of the will, especially when such clause contains no word expressing or implying such intention.
If the testatrix had contented herself with simply expressing a desire that all her children should be made equal, then, possibly, there might be room for the contention that she intended that all of her children should share equally in all of her property ; but she qualifies the expression of this general desire by adding explanatory words, which, while clearly including the children who had received deeds, with equal clearness do not include those who had not then, and, in fact, never afterwards, received deeds for land. Indeed, they cannot be included without doing violence to the language used by the testatrix; for to include them it would be necessary to read the word “heretofore” in a sense exactly the opposite of that which it properly bears, and to ignore entirely the latter part of the second paragraph of the fourth clause, directing- how the lands previously conveyed to some of the children are to be accounted for, viz., “in accordance with the terms of the deeds of conveyance to them respectively;” for, as there never were any deeds made to the appellants, it is quite certain that they could not be required to account, in accordance with the terms of deeds which never had any existence.
Now, let us consider the terms of the fifth clause. "While it is quite true that it contains words showing that the testatrix intended to convey the land therein mentioned to the appellants “by deed as to others,” yet it is equally true that she abandoned that intention, or, at least, failed to carry it into effect, and, therefore, the alternative provision, by devise, took *173effect. In this alternative provision there is not a word indicating that these devises were to be regarded as advancements, or that the devisees were to take, burdened with any liability to account for the value of the land. On the contrary, the home tract of land, after being divided in the manner specifically directed, was devised to the appellants, without qualification or limitation, and without being burdened with any liability to account for its value. The words “asabove directed,” relied upon to sustain a contrary view, were manifestly used simply to show how the home tract was to be divided between the two appellants; for the testatrix having first declared that she contemplated making deeds for the two parcels into which she desired the home tract divided, and directing specifically how such division should be made, and which parcel she intended for each of the two appellants, proceeds, as follows: “And I do hereby give and devise the above named tracts to said Hannah Kirkpatrick and Annie Taylor, as above directed, in the event my death should occur before making the deeds of conveyance to them as above indicated,” meaning clearly that if she failed to carry out her intention to make the deeds, then the two tracts, into which she proposed to divide the home tract, were devised to Hannah and Annie, and, for the purpose of showing which of the two tracts each should take, she added the words “as above directed;” that is, that Hannah should take the lower part, containing about 200 acres, and Annie should take the remainder, containing about 250 acres, subject to a life estate in her father in 100 acres, embracing the dwelling. So that, even if it be assumed (though it is by no means clear) that the testatrix contemplated making deeds to the appellants burdened with a liability to account, as in the case of the other children, to whom deeds had been made, yet, as she never carried out that intention, the alternative provision by devise took effect, which, not being burdened with any liability to account, the appellants are each entitled to an equal share of the proceeds of the sales directed by the second and third clauses of the will, without any liability to account for the value of the land devised to them respectively.
*1744 *173Hnder this view of the case, it becomes unnecessary to con*174sider the question whether the appellants would be bound by the appraisement put upon the land devised to them by the appraisers appointed by the executor. But we may add that, in our judgment, such an appraisement could not-, under any construction which might be put upon the terms of the will, be held binding upon the appellants, who were not allowed any voice iu the selection of the appraisers.
The judgment of this court is, that the judgment of the Circuit Court, iu so far as it tejects the claim of Annie Taylor, be affirmed; but in so far as it construes the will as requiring the appellants to account for the value of the land deyised to them, it be reversed, and that the case be remanded to the Circuit Court, for the jmrpose 0f carrying out the views herein announced.