Blount v. Walker , 28 S.C. 545 ( 1888 )

The opinion of the court was delivered by

Mr. Justice McIver.

There can be no doubt that the donor of a power may prescribe the particular mode in which the power is to be exercised, and there is as little doubt that there can be no valid execution of the power unless the mode prescribed is strictly complied with. Sugd. on Powers, chap. 5, section 3,

So that the essential inquiry in all cases of this kind is: 1st. What is the mode prescribed by the donor of the power for its execution ? and 2nd. Whether such mode has been strictly complied with?

Now, in this case, the mode prescribed by the donor of the power is expressed in these words — “by her last will and testament duly executed” — and the controlling question is, what was the intent of Mrs. Harris in using those words? Did she mean a will duly executed according to the laws of South Carolina, or did she mean a will duly executed according to the laws of any State or country in which the donee of the power might happen to be domiciled at the time of her death? Inasmuch as it is conceded that Mrs. Harris was, at the time of her death, and always had been, a resident of South Carolina; that her will was executed here according to the laws of this State, and that the property therein disposed of was all located here, it seems to us that her language in describing the mode prescribed for the execution of the power, must be interpreted to mean exactly what such language is usually understood to signify here, unless there is something in the context which would impart to it a different signification.

For the rule, as we understand it, is that in interpreting a will, a contract, or any other instrument in writing, the words must be taken in the sense which they usually bear in the place where such instrument in writing is executed. The purpose is to ascertain the intent of the parties, and where there is no ambiguity in the language used, such intent must be gathered solely from the words of the instrument, and those words must be interpreted in their usual and ordinary sense in the place where they are used. This rule is not only fully supported by authority, but by reason and common sense. A person, in a particular State or country, using words which, in that locality, bear a specific and well defined meaning, would naturally, and we may say necessarily, be regarded as using such words in that sense, unless there was something in the paper itself which would indicate that the words were used in a different sense.

Now, apply this doctrine to the case under consideration. Here Avas a South Carolina lady making her will in this State, whereby she was undertaking to dispose of property located here, and in doing so she confers a poAver Avhich the donee can only exercise “by her last will and testament duly executed.” It seems to us that, in the absence of anything in the avíII indicating a different purpose, these words must be interpreted to mean what they ordinarily and usually signify here; that is, a will duly executed according to the law's of South Carolina, for that is what those words, when used here, usually and ordinarily, and we may say, universally signify here.

Now, is there anything in the will of Mrs. Harris which would indicate that she intended to use those words in a different sense? We must confess that we are unable to find anything of the kind. On the contrary, when we look to other parts of the will and find that the testatrix has taken uhusual and extraordinary precautions to guard Mrs. Blount, the donee of the power, from any imposition or undue influence in exercising the power conferred by the will, to call upon the trustee “to sell, exchange, or transfer” any of the property given to Mrs. Blount for life, it would be difficult to believe that Mrs. Harris intended that she should be deprived of that protection which the laws of South Carolina throw around a testator, by requiring that his last will and testament shall be executed with all the solemnities required by our statute. Mrs. Harris manifestly regarded her daughter as a person liable to, and in danger of, being improperly influenced by some one, in the disposition of her property, and it can hardly be supposed that she intended that her daughter should exercise the power of absolutely disposing of this property by will without the observance of those forms -which she must be assumed to have known the wisdom of her State had prescribed for the protection of testators from undue influence.

It is said, however, that if Mrs. Harris had intended that Mrs. Blount should exercise the power of appointment only by a will executed in the manner prescribed by our statute, it would have been very easy for her to say so by the addition of a very few words to those prescribing the mode of appointment — that she might have said, “by her last will and testament duly executed,” according to the laws of South Carolina. But according to our view, that is precisely what the words used mean, and the additional words suggested would have been mere surplusage. If, however, Mrs. Harris really intended that the power conferred could be exercised by the donee by her last will and testament, executed anywhere, and according to the laws of any place where Mrs. Blount might happen to be domiciled, then additional words would have been necessary to express such an intention, and the testatrix should have said, “by her last will and testament duly executed” according to the laws of the place where Mrs. Blount might reside or be domiciled.

Suppose the mode prescribed for the execution of the power had been “by deed duly executed,” can there be a doubt that those words would be interpreted to mean an instrument in writing, signed, sealed, and delivered in the presence of two subscribing witnesses ? And why ? Simply because that is the meaning of the word “deed” here. For the same reason the words used in the will under consideration must be interpreted, a will duly executed according to the laws of South Carolina.

The fact that the paper alleged to be the will of Mrs. Blount has been admitted to probate in North Carolina, and an exemplification thereof in this State, does not affect the question. This paper was doubtless a valid will in North Carolina, sufficient to pass any property which Mrs. Blount was entitled to in her own right in that State, and any personal property which she owned anywhere, and was, therefore, no doubt, properly admitted to probate there, as well as here, upon the exemplification under the statute. But the question here is, not whether Mrs. Blount has made a will disposing of her own property, but whether the paper propounded as such is a valid execution of the power conferred by the will of Mrs. Harris; and for the reasons above stated we do not think it is.

Under the view taken by the Circuit Judge it was unnecessary for him to consider or determine the other question, discussed here, as to who would be entitled as heirs at law of Mrs. Harris to the property in the event of the failure to exercise the power conferred by her will, and accordingly he made no decision upon that subject. That question is, therefore, not properly before us at this stage of the case. The powers of this court being appellate only, so far as cases like this are concerned, we have no authority to decide, originally, any question, but are confined to a review of the judgments of the Circuit Court, and as that court has rendered no judgment upon this question, there is nothing before us for review, so far as such question is concerned. The case must, therefore, be remanded to that court for the consideration and determination of the question, which now properly arises as to who will be entitled to the property involved in this controversy as heirs at law of Mrs. Harris — whether those who stood in that relation to her at the time of her death, or those who occupied that position at the time of the death of the life tenant, Mrs. Blount, together with any other questions incidental thereto.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and the case remanded to that court for such further proceedings as may be necessary to carry out the views herein announced.

Mr. Justice McGowan concurred.