May v. Riley , 279 S.C. 248 ( 1983 )

Lewis, Chief Justice

(dissenting):

The majority opinion correctly summarizes the facts and applicable law in this case, but reaches, in my opinion, the wrong result. I must respectfully dissent.

The majority opinion cites Item Ten of Abner Stockman’s will which provided that if any of his grandchildren were to die without issue then the share of that grandchild would be divided among surviving siblings. Item Nine, not mentioned in the majority opinion, makes the identical provision for his children. This repeated usage makes it clear that Abner Stockman intended for the survivors, and only the survivors, in each succeeding generation to divide among themselves the share of any brother or sister who had died without issue. There is no escape from the conclusion that a non-surviving sibling could not take in this division.

In 1946, Mary E. Hunter died. She was a child of Abner Stockman with three natural children of her own — Carlisle, Willie and Lillian. Thus Mary Hunter’s life interest passed in equal shares for life terms to each of her children under Item Eight of the will. Carlisle, however, had predeceased his mother. This fact activated the provisions of Item Eleven: Carlisle’s two children, appellants herein, succeeded immediately to their fee simple interests in their father’s portion.

Willie and Lillian, meanwhile, took their respective shares as life estates. For the next thirty-three years, there existed only two possibilities as between these grandchildren of Abner Stockman under his will. On the one hand, if both sisters had children of their own, the said children would proportionately inherit in fee simple the interests of their respective mothers, all under Item Eight. There would be no horizontal distribution in such circumstances. On the other hand, if one of the sisters failed to have children of her own, then the surviving sister would receive her share under Item Ten, no other claims being possible, given its clear language.

In fact, the second possibility was realized. Willie died without natural children, and her adopted children were held ineligible to receive under this will. Upon Willie’s death, the only surviving sibling was Lillian. Item Ten became operative, vesting an additional life interest in Lillian, to the exclusion of any other claimant. Upon Lillian’s death (later in 1979), both her life interest and the life interest received from Willie passed directly to Lillian’s children, the respondents.

Since Carlisle had long predeceased his sisters, he could not be held a “surviving brother” of Willie when she died without issue. Carlisle had no interest in Willie’s life estate, and thus Item Ten could hardly be deemed a “provision made for” him. This is a critical fact, because under Item Eleven the appellant children of Carlisle could only “represent” their father “in the event of the parent’s death before the provisions made for such parent shall take effect.” In 1979, with only one sibling surviving Willie, the will of Abner Stockman contained no “provision” whatsoever for Carlisle. Thus Carlisle’s children have no interest to which they can succeed.

The foregoing was correctly set out as the basis for the findings of the trial court, that the appellants have no claim to the life interest of Willie and that the sole recipients thereof should be the respondents. The judgment should be affirmed.

Gregory, J., concurs.