(dissenting):
I disagree with the majority opinion and would not defeat *103the purpose of R. P. Byrd, Sr., the testator, to help orphans if he had no grandchildren by son George. And I emphatically would not frustrate Mr. Byrd’s intention manifested in his will that neither of his sons have title to his bounty free of trust.
R. P. Byrd, Sr., died on March 9,1928, shortly after he had executed his will. The will was construed by the late L. D. Lide in the case of Parker v. Byrd, et al., cited in the majority opinion. The late L. D. Lide, Judge of the Twelfth Judicial Circuit, was recognized at the time of his death by his contemporaries as among the greatest legal scholars of South Carolina law. I agree with Judge Lide’s construction of the will and set forth herein the reasons for my agreement, but I first address the opinion of my brethren about the pertinency of Judge Lide’s construction of the Byrd will.
The majority opinion holds that since Epworth Orphanage did not allege the ruling of Judge Lide in Parker as an affirmative defense, the doctrine of res judicata could not be considered by this court. At the hearing on this matter, the Parker decree was introduced over the objection that, as related to this case, Judge Lide’s decision was mere dictum. In settling the record for appeal, the question of res judicata was brought before the court for the first time. Rule 15(B) of the South Carolina Rules of Civil Procedure provides, “when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” The rule also provides that if the court tries issues not raised by the pleadings, it shall state in the record all such issues tried and the reasons therefor. Judge Weatherford completely complied with this rule as is reflected by the Appendix to the record in this case. I would, therefore, hold that the issues of res judicata and collateral estoppel were properly before the court just as if they had been pleaded.
Additionally, the doctrines of res judicata and collateral estoppel were raised for the first time on appeal and should not, therefore, have been considered by the majority opinion.
And I also disagree with Judge Weatherford’s holding that Judge Lide’s construction of the will provision in question was mere dictum. I quote from Parker:
*104The plaintiffs herein brought this action as trustee under the will of R. P. Byrd, Sr., deceased, for the purpose, among other things, of having the court construe the will....
The construction of the will provision in question in this case was certainly within the purpose of Parker and therefore not dictum.
I think, however, that this court should construe the will according to its own thinking, giving weight to Judge Lide’s opinion as authority but not the law of the case.
R. P. Byrd, Sr., first devised a life estate in all of his property to his wife, then devised in trust a life estate of certain properties to each of his two sons, with a proviso for cross remainder in the event either son died leaving no surviving wife or issue.
The will then, by the subject will item, provided thusly:
Should the said beneficiaries or either of them die leaving an [sic] wife and a child or children then the title to the property hereinbefore provided for them shall vest in fee simple in his or their heirs,____
Following the above proviso in the same paragraph there is another clause (the provided however clause), which is the genesis of the dispute of this case:
[Provided, however, that should the wife of either, or both of said beneficiaries die leaving no issue, child or children on my said son or sons, then the wife or wives of either of the said beneficiaries to be vested with only a life estate in the property hereinabove provided for my said sons, respectively, with remainder over, after their death to the Official Board of Epworth Orphanage, an institution of the Methodist Church located at Columbia, S. C., to have and to hold the same in fee simple for the benefit of the said institution.
Son R. P., Jr., is alive, married and has children. It is the property devised in trust for life to son George that is the subject property of this case. Son George died intestate on June 22,1981, leaving a wife but no issue. In fact son George never fathered children.
*105We are assisted in will construction by rules of construction which are designed to seek out the intent of the testator. The law abhors intestacy and will indulge every presumption in favor of the validity of a will. The paramount obligation of a court in will construction is to ascertain the intention of the testator. The testator’s intention is to be drawn from the entire will, from its general scope and import. In cases where the testator’s intention can be clearly perceived and is not contrary to some positive rule of law, it must prevail even though it involves the rejection or addition of words or a change of their literal meanings. Spell v. Traxler, 229 S. C. 466, 93 S. E. (2d) 601 (1956).
I would hold that the intent of the testator is clear; he intended, and nobly so, I think, to leave his wife a life estate, then certain properties in trust for each of his children for life and then if either son died leaving a wife but no children, the testator made a devise to the wife for life and then to Epworth Orphanage to care for other people’s children.
Judge Lide wrote, in effect, that the construction the writer would make can correctly be said to be the intent of the testator. I think so and it does not comport with the cynicism of the majority opinion that courts can derive no help from prior decisions in other will cases; rather it is supported by the wisdom not only of Judge Lide but also by the authority of Spell v. Traxler, supra, and the many authorities cited therein which direct the rejection of words when necessary to effect the clearly perceived intent of the testator.
And the writer’s construction also comports with logic. The testator intended for George’s wife to receive under the will; otherwise, he would not have provided that there not be a cross remainder if son George left only a surviving wife.
Now let us examine the majority opinion having in mind one additional rule of will construction, i.e., where an estate is given in words of clear and ascertained legal significance, it will not be enlarged, cut down, limited or destroyed by superadded words in the same or subsequent clauses unless they raise an irresistible inference that such was the intention. Additionally, the subsequent words should be at least as clear an expression of that intention as the words by which the interest was given. Power, et al. v. Power, et al., 219 S. C. 56, 60-61, 64 S. E. (2d) 14, 16 (1951).
*106The majority opinion would hold that the testator died intestate after George’s death as to the subject land unless he left a wife and issue1 and that Epworth Orphanage would not receive under the will unless George’s child(ren) predeceased George’s widow. This thesis cannot meet muster when analyzed. In discussing this theory, we deal only with a situation in which George was survived by a wife and issue;2 we do this not because it happened, but to expose the erroneousness of the very premise upon which the majority opinion is founded.
The first clause of the subject item of the will provided that if George died leaving a wife and issue, the subject land was devised to George’s heirs in fee simple. As an heir, the wife would have received only a one-third3 interest in the subject land. At this point, the subject item is distinct and clear.
But, the majority opinion then holds (1) that the provided however clause of the subject will item serves only “to limit a gift to a son’s wife” and then paradoxically, (2) that if George’s children predeceased his wife, then the wife would have a life estate in all of George’s land, with remainder over to Epworth Orphanage. The two holdings do not fit one another since it is impossible to garner an inference that the provided however clause limited a one-third interest in land and at the same time, by some unknown and unexplained process, made a gift to the wife for life of the whole tract of land. Nor is. it possible to garner an inference that the testator intended to limit the estate devised to George’s issue, had there been any. Had issue existed at George’s death, he, she or they would have owned a fee simple title to two-thirds of George’s land. He, she or they could have *107alienated by deed or will to whomever they desired their two-thirds interest in the fee of George’s land. Thus, if the issue had predeceased their mother, it does not necessarily follow that the mother would have obtained the issue’s interest in the land. One can only conclude then that the theory of the majority opinion relating to the however clause is totally flawed and a fortiori, that the provided however clause does not raise an irresistible inference that it cuts down the fee simple estate previously granted as required by Power v. Power, supra.
Returning to the writer’s construction of the will, at this point, the writer observes that, since the provided however clause makes a gift of all of George’s land to George’s wife for life, with remainder over to Epworth Orphanage, it is clear that the provided however clause applies to a situation other than the previous clause of the subject will item which only devised the wife a one-third fee simple interest in the subject land. And since the provided however clause provides that the wife shall have “only a life estate,” in all of the subject property the testator clearly and distinctly, I think, intended by the provided however clause to address a situation in which no children by George existed at George’s death. And in this event, the testator clearly intended a gift to Epworth Orphanage after the death of George’s widow.
The above conclusion is consonant with the rule that an estate which is clearly granted by the testator in an earlier provision cannot be cut down by a later provision of doubtful import. Johnson v. Waldrop, 256 S. C. 372, 182 S. E. (2d) 730 (1971), and the additional rule that every presumption must be made to avoid intestacy because the law abhors intestacy.
Before closing, the writer addresses one other thesis of the majority opinion, i.e., “he [the testator] clearly intended to give preference over third parties to his children first and to his other descendents.” This cannot be true because the first devise of the will is to the testator’s wife for life and not to his children. As a matter of fact, the gift to his children was in trust for the children’s benefit and that trust provision expressly provided that if either son left a wife or issue, there would be no cross remainder to the other son; the irresistible inference from this provision is that the testator intended to make a gift to George’s wife regardless of whether George left surviving children.
*108About the trust provision to his children, this Court cannot speculate why this devise to his children was in trust. I only observe that the testator did not intend for either son to have legal title to his property. This is clear but strangely the majority opinion vests fee simple title to George’s land in R. P. Byrd, Jr., free of any trust. This is antithetic to the explicit intent of the testator and therefore negates the validity of the conclusion by the majority opinion. How in good conscience can a court award R. P. Byrd, Jr., legal title to his brother’s land when his father, the testator, did not give him legal title to the very land apportioned him?
In conclusion, the writer chooses to be in the illustrious company of Judge Lide in holding that, as the facts developed, George’s wife received under the will a life estate to all of George’s land, with remainder in fee simple to Epworth Orphanage.
I would reverse the appealed order.
This necessarily presupposes that Mr. Byrd did not anticipate the possibility of his son’s dying without issue — an unlikely proposition, I observe, since neither of his sons had children at the time Mr. Byrd penned his will.
The writer does not concede that the word “and” in the first clause of the will item was not intended to be “or.” Certainly, Mr. Byrd did not intend to disinherit motherless grandchildren as the majority contends.
In 1949 the Legislature amended the statute of distribution so as to provide that if the intestate were survived by just one child and a widow, each would receive a moiety. The testator, R. P. Byrd, Sr., died under the old statutory law that a wife would receive one-third regardless of the number of surviving children.