The opinion of the court was delivered by: Moss, Justice.
This action is one for a declaratory judgment to construe the Will of Cora May Black Campbell, deceased, and for directions as to the distribution of the residuary estate. Such action is authorized by Section 10-2003 of the 1952 Code of Laws of South Carolina. The record shows that all possible heirs at law or persons who would take under the Will are before the Court.
Cora May Black Campbell, late a resident of Colleton County, died testate on May 26, 1953, leaving of force and effect her last Will and Testament dated April 28, 1953, which was duly admitted to probate in the Probate Court for said County.
We are called upon on this appeal to construe of Item Four of the said will, the residuary clause thereof, which provides that such residuary estate be divided into eight equal parts or shares and the last section of said Item provides as follows:
"One-eight (1/8) part to be paid to the child of my deceased sister, Elizabeth B. Padgett, to him absolutely and forever."
The parties to the action entered into a stipulation of facts by which it was agreed that at the time of the execution of the will by the testatrix "that the only child of her deceased sister, Elizabeth B. Padgett, to wit: Oliver Wendell Padgett, Sr., was dead, he having died on or about November, 1950, and knew that his only children surviving him were the plaintiffs in this action, O.W. Padgett, Jr., and Jack P. Padgett."
Upon the pleadings and the stipulation this cause was heard and determined by the Trial Judge and thereafter he filed his Decree construing the Will and finding for the plaintiffs.
We approach the construction of this Will keeping in mind the rules by which we are governed in reaching a conclusion.
"It is elementary that the cardinal rule of construction is to ascertain and effectuate the intention of the testator, unless that intention contravenes some well-settled rule of law or public policy. While there are certain rules of construction to be followed in seeking such intention, they are subservient to the paramount consideration of determining what he meant by the terms used in his will. Peoples National Bank [of Greenville] v. Harrison, 198 S.C. 457, 18 S.E.2d 1. The same underlying principle was stated by Chief Justice Marshall in Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322, as follows: `The first and great rule in the exposition of wills (to which all other rules must bend) is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law'".
"At common law a testamentary gift to one who was dead at the time the Will was made was void. This rule has been modified in many American jurisdictions by statutes." 57 Am. Jur., 145.
The rule as to the effect of a legacy to a dead person at the time of the making of the Will is stated in 69 C.J. 1066, as follows:
"The general rule, in the absence of any statutory provision to the contrary, is that a legacy, or devise to a person who is dead at the time of the making of the will is void, or, it has been said, lapses, and it is immaterial to the operation of the rule that the testator knew when the will was made that the legatee was dead."
And again from 69 C.J., 1065, we find the following:
"(f) Gifts to Persons Dead at Date of Will — aa. In General. Statutes intended to prevent a lapse by the death of the devisee or legatee before the testator are sometimes construed not to apply where the devisee or legatee was dead when the will was executed. Other cases, however, have repudiated this rule and hold that, in furtherance of what may be presumed to have been the intention of the testator, the statutes apply notwithstanding the death of the devisee or legatee before the execution of the will. Of course, where the case is expressly provided for by the statute, there is no distinction between the issue of a devisee who dies before the making of the will and one who dies after it."
South Carolina does not have an anti-lapse statute under which the plaintiffs may claim, so that any statement of the law as to the application of a statute in which a legatee was dead prior to the making of the will cannot apply in this case. Our anti-lapse statute provides:
"If any child should die in the lifetime of the father or mother, leaving issue, any legacy of personalty or devise of real estate given in the last will and testament of such father or mother shall go to such issue, unless such deceased child was equally portioned with the other children by the ...