
    Nathan M’Allister vs. Tilman Tate.
    
      Wills and Testaments — Evidence—Limitation of Estate.
    
    One who drew a will, will not be received as a witness, to explain the meaning of certain ambiguous words.
    A devise of land to one “ in fee simple for life” carries the absolute estate.
    BEFORE MUNRO, J., AT ANDERSON, FALL TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    “ The action was trespass to try titles. The plaintiff seeks to recover three-sixths of the land in dispute — one-sixth himself in his own right, as an heir-at-law of one Nathan-McAllister, deceased; the other two-sixths as purchaser of the interests of Thomas McAllister and Elizabeth Emerson, a brother and sister of the said Nathan McAllister, deceased.
    “ The defendant, who was admitted to be in possession of the land, claims it under a conveyance from one Nathan McAllister Arnold, (date, the 11th August, 1846,) to whom it was devised by tbe last will and testament of tbe said Nathan McAllister, Sen., bearing date tbe 1st of June, 1836.
      
       
      The devise is in tbe following words: ‘ I give and bequeath to Natban McAllister Arnold, a child raised by me, a certain tract of land, whereon David Gordon now lives, containing two hundred and ninety-three acres, more or less, in fee simple for life.’
    “ The defendant offered to show by Dr. Evins, who drew the will, what the testator meant by the words, ' fee simple for life.’ I excluded the testimony, and instructed the jury, that, under the devise in question, the devisee, Nathan McAllister Arnold, took but an estate for life. The jury found for the plaintiff.”
    The defendant appealed, and moved the Court of Appeals for a new trial, on the grounds:
    First. Because, it is respectfully submitted, his Honor erred in excluding the testimony of Dr. Alexander Evins, who drew the will of Nathan McAllister, deceased, and should have been admitted to interpret the words which he had inserted, and state the intention of testator.
    Second. Because his Honor erred in instructing the jury that by a proper construction of the will of McAllister, Arnold, under whom the defendant held, took only a life estate.
    Third. Because the verdict for the plaintiff is contrary to the law and the evidence.
    The Law Court of Appeals, after hearing argument, ordered the case to this Court, where it was now heard.
    
      Perry, Me Gowan, for appellant,
    cited Cotton vs. StenloJce, 12 East, 515 — “Hnder a devise to one, and-her heirs during their lives, held that the latter words were repugnant to the others, and that she took an estate of inheritance.” Smith vs. Pybast 9 Ves., 566 — An estate to be equally divided between A., B. and 0. and their heirs, or the survivor of them, in the order they are now mentioned. The concluding words, “ in the order,” &c., being rejected as repugnant. 1 Jarm. on Wills, 411, note — “ It is now fully established that the general intent of the will, although first expressed, shall overrule the particular.” See all the authorities referred to; 2 Williams, 789. Bartlett vs. King, 12 Mass. 557 — “If there are words which have no intelligible meaning, or be absurd or repugnant to the clear intent of the rest of the will, they may be rejected.” 1 Jarm. on Wills, 419 — “It is clear,'however, that words and passages in a will which are irreconcilable with the general context, may be rejected, whatever may be the. local position which they happen to occupy; for the rule which gives effect to the posterior of several inconsistent clauses, must not be so applied as in any degree to clash or interfere with the doctrine which teaches us to look for the intention of a testator in the general tenor of the instrument, and to sacrifice to the scheme of disposing so disclosed, any incongruous words and phrases which have found a place therein.” 2 Dess., 31 and 32 — “ The governing rule of construction in the case of wills is the intent of the testator; and that intent must be collected from the whole will; ex visceribus testamenti, so as to leave the mind quite satisfied about what the testator meant; and to construe, conformably thereto, so far as it is possible, consistent with the rules of law. When sentences are doubtful or ambiguous, the exposition must be made according to the testator’s intent, which Lord Coke calls the pole star to guide judges in their determinations. In s.ome cases equity will construe a will against express words to make it take effect according to the testator’s intent, and will reject inconsistent or contradictory words? ■ Wolf vs. Allcock, 1 B. & Aid., 137, (see 1 Jarman, 438) — “ A devise to a sister and her two daughters, their heirs and assigns, equally to be divided between and amongst them, share and share alike, as tenants in common, and not as joint tenants, for and during the life of my said sister, Elizabeth Harley.” Lord Ellenborough said, “ The testator has thrown together a heap of words, the sense and meaning of which he did not clearly apprehend,” &c. The latter words for life rejected, and the estate declared to be a fee simple. Baher vs. Bridge, 12 Pick. 27 — “ If by the terms of a devise, expounded with reference to all the other provisions of the will, it appears affirmatively that it was the testator’s intent to give a fee, a fee will pass;” God-frey vs. Humphrey, 18 Pick. 337. Belwood vs. Mildway, 3 Yes., 306 — The testator gave property, and had no such property. It was admitted for the writer of the will to explain what testator intended. Thomas vs. Thomas, 6 T. E. 671 — Parol evidence admitted to prove that the name of A. was inserted by mistake for B. Bvans vs. Qodbold, 2 Eich. Eq. 26 — ■ "Where a testator uses a technical term, he is presumed to use-it in a technical sense, unless a special intent to the contrary is manifested by the context. Schoppert vs. Gillam, 6 Eich. Eq. 83 — The circumstances by which a testator is surrounded when he attests his will, will always be allowed an influence in the interpretation of dubious words or phrases in it. O’Neall vs. Boozer, 4 Rich. Eq. 22 — Words of a will may be transposed in order to give full operation and consistency to the context. Moon vs. Moon, 2 Strob. Eq. 327 — • A devise explained by reference to the whole will. Testator stated his intention to dispose of all his estate, but did not, unless the wife took a fee in the land. 1 Jarm. on Wills, 427 — As to the construction of words and phrases in a will. Kersh vs. Younge, 7 Eich. Eq. 100 — “ The deed to be construed most strongly against the grantor, and therefore, interests taken, under, or by virtue of such instruments, are to be the largest of which the words are susceptible.” “ The court will not hold there is a reverter in any case, where any other reasonable construction can be given” — Baldwin's Case, 2 Co. E. 23; 6 Eicb. Eq. 136.
    
      Sullivan, Reed, contra,
    cited 5 Bac. Abr. Wills, 28 ; 1 Cowp. 99 ; Prec. in Ck. 473; 18 Yes. 421; 4 Kent 3; 8 T. E. 67; 20 Wend. 576; 5 Pick. 128; 3 Strob. Eq. 211.
    
      
      
         The following is a copy of the will:
      In the name of God, Amen. I, Nathan McCallister, of the State of South Carolina and District of Anderson, being in feeble health, and at advanced age, though of sound and disposing mind, memory and understanding, calling to mind the uncertainty of the continuance of life and the absolute certainty of death, and being desirous to dispose of the worldly effects that it has pleased God to bless me with, do make, constitute and ordain this to be my last will and testament hereby revoking all other wills by me heretofore made :
      First, I give with confiding hope, my soul to God, and my body after my death, to be buried in a Christian manner.
      Second, I give and bequeath to Nathan McCallister Arnold, a child raised by me, a certain tract of land, whereon David Gordon now lives, containing two hundred and ninety-three acres, more or less, in fee simple for life.
      
      Third, I give and bequeath to Nathan McCallister, son of Andrew McCallister, the whole of that tract of land whereon X now live, containing about seven hundred acres, in fee simple for ever, on condition he pay to Francis McCallister, my brother, five dollars, and to his son, Nathan McCallister, ninety-five dollars, in one year and a day after his taking possession of said land, and the said Nathan McCal-lister, son of Andrew McCallister, is immediately after my death, to take possession .of the aforesaid premises, together with all my personal estate; he is, viz., Nathan McCallister, to pay one hundred dollars tobe equally divided among the heirs of Andrew McCallister that may be living at the time of my decease; also, one hundred dollars to Elizabeth Emberson, my only living sister; also, one hundred dollars to my brother John McCallister; one hundred to Thomas McCallister and William McCallister, my brothers; one hundred to each. Also, that he pay one hundred dollars to the heirs of Rosa McCallister, to be equally divided among them; one hundred dollars to be paid to Allen Arnold. All these legacies to be paid by the aforenamed Nathan McCallister.
      I do constitute and appoint the said Nathan McCallister and John McCallister executors of this my last will and testament; and they are charged and enjoined to pay all my just debts, and faithfully execute this my last will and testament, according to the true intent and meaning of the same.
      In witness whereof, I have hereunto set my hand and seal, this the tenth day of June, in the year of our Lord one thousand eight hundred and thirty-six, and in the sixtieth year of American Independence.
      NATHAN McALISTER. [seal.] Signed, se aled, ratified and delivered *
      in the presence of each other, and at the request of the testator,
      In the presence of
      Robert Todd,
      Andrew Todd,
      A. Evins.
    
   Tke opinion of tke Court was delivered by

O’Neall, J.

On tke first ground of appeal tke Court of Law .entertained no doubt. Tke will is to be construed by tke words used. Tke writer, Dr. Evins, was an incompetent witness to say wkat was meant by tke words, “ in fee simple for life.” To solve tkat question, tke case was ordered to tke Court of Errors.

There is no doubt about tke general rule, tkat in construing a will, tke intention, when it can be ascertained, unless it be contrary to some rule of law, is to prevail. So, too, it is permissible, in construing a will, to read all its parts, and to ■gather light from any part, which may reflect'it upon tkat which is dark and uncertain. Tke will here shows, tkat tke testator intended to dispose of kis whole estate: there is no residuary clause,,in tke will! Each devise, therefore, it may be well argued, was intended to carry all tke estate, which tke testator possessed in tke land devised.

Tkat neither the testator nor kis scribe knew tke precise meaning of tke term, in “ fee simple,” is, I think, true. Eor when he gave to Nathan McAllister another tract of land he used tke words “ in fee simple forever.” When, if either had understood tke meaning of tke words “fee simple,” he would have known tkat those words carried an estate to “ a man and kis heirs forever:” and tkat the word “forever” after tke words fee simple ” was tautology.

To construe tke words in “fee simple for life,” as conveying an estate in fee, is, I think, the construction best in support of tbe testator’s intention. For it subserves and carries out bis expressed purpose of disposing of bis whole estate. But if they must be read by themselves, then they are utterly inconsistent, and both must be rejected; or the words “for life” must be regarded as absurd, and be altogether struck out of the will. Either course will sustain the defendant’s title. If both are struck out, as unmeaning, when used together, — then the will would be read, as simply devising to Nathan McAllister Arnold. Such a devise by our Act of 1824, for the amendment of the law in divers particulars therein mentioned,” (1 §, Act of'1824, 6 Stat. 237,) would carry an estate in fee simple. The words of the first section are, “ That no words of limitation shall hereafter be necessary to convey ‘an estate in fee simple by devise; but every gift of land by devise shall be considered as a gift in fee simple, unless such a construction be inconsistent with the will of the testator express or implied.” Who can say that there is any thing in the will inconsistent with the construction that the devise is in fee simple.

But if the words in “fee simple for life” must remain, then I think the rule that the words “ for life ” should be regarded as repugnant to the estate already conferred, and should be rejected, must prevail. For it is impossible to give a consistent meaning to the words in-“fee simple,” and the words “ for life.” The words, in fee simple, carry the estate to the devisee and his heirs forever. The words “for life” added to these would present the strange anomaly of an estate to a man and his heirs forever for life. This would be too absurd to be tolerated, and yet that is precisely the legal effect of using all the words contained in the devise.

The case of Cotton vs. Stenloke, 12 East, 514, it seems to me, favors the view which I have just taken. The devise there was, “ I give unto my daughter, Phillis Cotton, and her heirs, Moorhead Meadow, during their lives.” Lord Ellenborough, C. J., said, “ The words during their lives, after the devise to tbe daughter and her heirs, are merely tbe expression of a man ignorant of tbe manner .of describing bow tbe parties whom be meant to benefit, should enjoy tbe property; for whatever estate of inheritance tbe heirs of bis daughter might take, they could, in fact, only enjoy tbe benefit of it for their lives.” In this case, the devise is in legal effect to Nathan McAllister Arnold and his heirs, to which the testator added “for life.” That, as in Gotten and Stenlohe, might mean to describe-the enjoyment of the devise by him and his heirs each in turn for life.

Without pursuing further the words so senselessly used, we are satisfied to declare that Nathan McAllister Arnold took an estate in fee.

The motion for a new trial is granted.

DüNkiN, Dargah and Wardlaw, CC., and. Glover, J., concurred.

Wardlaw and Muhro, JJ., dissented.

JohNstoN, Ch., and Withers, J., absent.

WhitNer, J., gave no opinion, having been consulted when at the Bar.

Motion granted.  