July 21, 1931. The opinion of the Court was delivered by It is with great regret I find myself unable to agree with the proposed opinion of Mr. Justice Cothran; likewise, I am disappointed that I cannot approve the two decrees of Hon. T.S. Sease, Circuit Judge, appealed from herein. I submit the following as my idea of what the opinion of the Court should be in this case.
John D. Collins was long a wealthy and successful merchant at Spartanburg. His chief enterprise was a department store located on east Main Street, known as the Bee Hive. *Page 425 He had several branch stores, at Union, Greer, and Landrum.
He had 12 children by his first wife, who predeceased him. Five of these were over 25 at his death, two were between 21 and 25, and five were under 21. His fourth child, a daughter, had long been hopelessly insane, and was and is confined in the State Hospital for the Insane. Mr. Collins, in his will, made no provision whatever for her.
His second wife survived him. He had undertaken a prenuptial settlement with her, whereby she was to relinquish all right in his estate in consideration of $10,000.00 to be paid her after his death.
He died in November, 1925, leaving the will and codicils involved here. His estate was valued at $500,000.00.
His widow repudiated the prenuptial settlement, and, in an action brought by the executor to compel her acceptance, was paid $37,500.00.
The Bee Hive storehouse and lot on east Main Street is by far the most valuable piece of real estate. It was a four-story and basement brick building, fronting 53 feet on Main, and running back with that width about half way to Broad, and continuing to Broad with a width of 25 feet. The building on the narrow Broad Street portion was brick, one story and basement.
In March, 1929, this building and all fixtures and stocks contained in it (and the stocks of all the branch stores except one had been brought into it) were totally destroyed by fire. There was $47,500.00 insurance on the building and $58,000.00 on the goods. During the pendency of this litigation, several banks in North Carolina, in which the executor had deposited the greater portion, if not all, of the insurance money, closed their doors. It is probable that there has been a great loss on this account to the estate of Mr. Collins.
There had long been a barber shop in the Main Street basement, which testator had rented, and which was not connected with the business. *Page 426
After the fire, responsible parties offered to rent the ground, erect a modern, fully equipped building to cost not less than $90,000.00, at their own cost, pay taxes and insurance, and rent it for 30 years at an annual rental commencing at $10,000.00 per year, and advancing to $12,000.00 in five years, and to $15,000.00 in ten years, the building to belong to the owners when the lease terminates. It is next to the Kress store, whose lease is on the same terms, and whose building had been erected.
By reason of the death of his first wife after the will was made, and by reason of the testator's having sold, in his lifetime, the only real estate attempted to be disposed of by the will, there are no specific bequests or devises to be considered, and the questions presented are merely different forms of asking what the testator did with his personal and real property.
The plaintiff commenced this action in the Court of Common Pleas of Spartanburg County against her brothers and sisters, her stepmother and Mr. Lee, the executor named in the will, for a construction of the will. The complaint, one of much length, really sought to allege, if it did not clearly do so, that it was impossible to determine the intention of the testator from the language of the instrument, and contended that, for that reason, it was not a valid will. This statement is made because the complaint points out many, many instances of irreconcilable conflict in the provisions of the will.
It appears that the widow, Mrs. Pearl W. Collins and two of the children, William A. Collins and Edward McAlpine Collins, did not answer. Several separate answers were filed in behalf of the other defendants, they being represented in all by at least eleven attorneys. The defendants, who urge the validity of the will and claim that its terms are plain, in almost every instance disagree as to a construction of the language of the instrument. J. Duren Collins and R.E.L. Collins, who, if the will is sustained, appear to have been the greatest recipients of their father's bounty, are in much *Page 427 doubt as to what his intention was, but ask that the instrument be held to be valid. The executor begs the Court to instruct him.
Two of the defendants, Francis E. and Harold Collins, in their answer, boldly attacked the validity of the instrument and said, "that the will and codicils disclose a continuity of testamentary intention, failing of comprehensiveness to reconcile the mutually destructive force of various parts of the provisions and directions, and that the rejection of those which must be rejected will result in the defeat of the testator's whole intent, and therefore, by reason of the impossibility of execution of some of the provisions, the irreconcilable conflict between others, the unlawfulness of others, the will cannot be executed and except for the appointment of the executor and testamentary guardian, is without force and effect, and should be so declared."
The testimony in the case was taken by the Master, but he did not pass upon the legal questions involved. The cause was heard by his Honor, Circuit Judge Sease, who passed a decree construing the will, and provided therein that, if any matter had been omitted by oversight, the parties might apply to have the same determined in a supplemental decree. From that decree, the plaintiff and all the answering defendants appealed. Later, the plaintiff in a supplemental complaint asked for a more definite determination of certain questions alleged to have been overlooked, and by agreement the appeal was suspended until those questions could be determined. The attention of the Court was called to the burning of the store building. From the supplemental decree of Judge Sease, all the active parties, except the minor defendants, Kathleen Collins, Mildred Collins, Miriam Collins, Dorothy Collins, and Ethel Collins, non compos mentis, appeal to this Court.
The case has been in this Court many months, and has been well and carefully considered. We have had two arguments before the Court, granting additional time therein to the attorneys that their views could be clearly presented. *Page 428
We realize that our Courts should hesitate a long, long time before declaring that a testator's will should be set aside because of confusion and ambiguity in its terms. When a Court, after long-continued study and careful examination, cannot ascertain a testator's intention from the instruments he has left as his will, there is nothing left for the Court to do but to declare the instrument invalid. Some of the language in the argument of C.E. Daniel, Esq., attorney for the plaintiff, is so apropos of what we have in mind that we take the liberty to quote it.
"From the terms of the will and codicil, it is impossible to deduce a sustained intent which can be effectuated.
"The application of the rules of construction (which come into play only when the intent is not apparent) produces results equally confusing and impossible.
"The rules, in substance, are: The intent must govern; it must be gathered from the will; every word and clause must, if possible, be given effect; the construction must be by the entirety, and not per parcella; the deduced intent must be so strong as to leave no doubt in the mind of the Court, and may not rest on conjecture; the presumption is that testator intended to dispose of his entire estate; the law favors the construction most nearly in conformity with the statute of distributions; double portions are disfavored; Courts are not permitted, under the guise of interpretation, to incorporate provisions; of two inconsistent provisions, the latter prevails; but only when it is as plain and decisive as the first; the just, natural and reasonable disposition is favored. See 21 R.C.L., 217-234, and 40 Cyc., 1396 to 1417.
"From the language of the will and codicils, we can discern no completed intent, no main and sustained purpose, but only fragmentary designs, each a closed system in itself, and each disrupted by the forgotten provisions that slipped the testator's mind when he attempted to formulate his subsequent incomplete schemes. We do not think the Court can believe that when he wrote his last codicil, the testator had *Page 429 in mind fitting it into a testamentary scheme carrying through the will to which it was a codicil. His intent, if any, is broken, unrelated, intermittent. He had not `thought through it.'"
Hardly two of the lawyers engaged in this cause, who had studied for many months the will and codicils in question, have agreed as to the meaning of any single provision therein. The learned Circuit Judge, who evidently gave much thought and study to the instruments, at last, as shown by a careful reading of his decrees, had to resort to conjecture and supposition upon which to base his conclusions. In his decrees, as we see it, he made a will for the testator. It is impossible for us to say, however, if the testator intended to make such a will. Our learned brother, Mr. Justice Cothran, who never tires in his efforts to see that a cause is justly decided, after an extended study of the instruments, seeking all the time to sustain their validity, has, in our opinion, made a will for the testator, perhaps, one the testator might have made for himself if he had understood the laws relating to wills. But who can say that the testator would have made the will Mr. Justice Cothran thinks he intended to make?
The will and codicils speak for themselves. They say to us only one thing which we may plainly understand, this: The testator, controlled by the motive which moves many mortals, the desire to have something made by him last forever, wished to see his handiwork, the Collins' Bee Hive, continue just as long as it might continue in the same manner he had built it. Already, fire and closed banks have shown the impossibility of carrying out the testator's plans, even if they could be ascertained. "Man proposes and God disposes." Testator's desire that mortal things should become immortal caused him to write a will, which, in our opinion, is so confusing and ambiguous that it is impossible for its terms to be carried out, even if the terms could be understood. Let the will and codicils and the decrees of the Circuit Judge be reported. *Page 430
We have endeavored to apply every recognized rule for the construction of wills, in an effort to discover the intentions of the testator. When, following any given rule, we have thought his intention had been ascertained, then we found we had run counter to some other rule or to some positive declaration of the law forbidding the application of the rule. Everywhere there was only ambiguity, conflict, confusion, guess, conjecture, supposition, and mystery.
Every time we have read the will and codicils of the testator, we have reached a different conclusion as to what he intended to do. No two members of the Court are able to agree as to his intention regarding any one important matter involved in the will. In only one thing is there certainty, that is, as to the appointment of the executor, and that provision alone may stand.
"The Courts will hold a will void in its entirety for uncertainty when, after consideration of all its provisions and all the matters which shed light on it and make it certain, it remains so obscure, indefinite, and ambiguous that no definite idea of the testator's intention can be formed. It is only in such an extreme case, however, that the Courts declare a whole will void for uncertainty, regardless of how they may hold on the certainty or uncertainty of particular devises or bequests." 40 Cyc., 1092.
"Where the words of a will, aided by evidence of material facts, are insufficient to determine testator's meaning, no evidence will be admissible to prove what he intended, and the instrument is void for uncertainty." Steele v. Crute,208 Ala., 2, 93 So., 694, 695.
"Uncertainty of expression and doubtful meaning does not absolve the Court from the duty of interpreting a will, unless it is so vague and so indefinite as to render the purpose and meaning incomprehensible." In Re: Allen's Will,111 Misc. Rep., 93, 181 N.Y.S., 398.
"In the construction of a will, Courts are not permitted to supply what the testator has failed to indicate, and if after *Page 431 every endeavor the judicial expositor finds himself unable in regard to any material fact to penetrate through the obscurity in which the testator has involved his intention, the intended disposition fails." Wise v. Rupp, 269 Pa., 505,112 A., 548.
It was exceedingly unfortunate that the testator, who was such an excellent business man, did not, in drawing his will and the codicils thereto, go about the very important matter of disposing of his large estate in a more careful manner, and that he did not obtain, in the preparation of all these instruments, expert legal assistance. This Court would be glad, indeed, to give full force and effect to what he attempted to do, if we were able to ascertain his intentions, and if those intentions were not contrary to positive rules of the law. Fortunately, in instances of this kind, which we are pleased to say are very rare, our laws relating to the disposition of intestate estates have made very fair and just provisions, and these may be easily carried into effect.
The judgment of this Court should be that the will and codicils involved in this proceeding are too uncertain, confusing, vague, and ambiguous to be declared valid testamentary instruments, except as to the appointment of the executor; and, with the exception stated, that they be declared invalid, and the cause should be remanded to the lower Court for such proceedings as are consistent herewith.
A majority of the Court concurring in this opinion, it becomes the judgment of the Court.
MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE COSGROVE concur.
MR. JUSTICE CARTER concurs in result.