The opinion of the court was delivered by: Legge, Justice.
June 11, 1956.
This action was commenced in November, 1952, by the administrator c. t. a. of the estate of Satterwhite J. Wall for construction of certain provisions of his will dated November 8, 1948, and for instruction as to the further administration of the estate. Joined as defendants were the testator's brothers and sisters, who would have taken as his sole heirs had he died intestate, and the members of the Board of County Commissioners of Marion County, who under the general statutory law, Code 1952, Title 71, Chapter 2, are the overseers of the poor of that county. One of the defendants, a sister of the testator, died intestate after the commencement of the action, and her heirs were duly substituted in her stead.
The testator had been for many years Superintendent of Education for Marion County, and was later a member of the General Assembly, in which he was serving at the time of his death on August 20, 1951. During his tenure in office as Superintendent of Education he studied law and was admitted to the bar; but he did not actively practice, although he occasionally drew wills, — among them his own here involved. He never married, and for many years prior to his death had lived at a hotel in Marion. At the time of his death his brothers and sisters were well advanced in years, the youngest being seventy-one and the oldest eighty-three; and all were without income sufficient for comfortable living. The record indicates that the testator's relations with them were not particularly close, although his will shows his concern that they should be comfortably provided for during their respective lives.
By Item Twelve of the will, the testator nominated Clinton Lodge No. 60 Ancient Free Masons, of Marion, S.C. as executor, and provided that if the Lodge should not be qualified to act, then the three highest officers of said Lodge, and their successors in office, should act as executors. The Lodge, by proper resolution, refused to accept the responsibility of the executorship, and its three highest officers likewise declined to act; so that the plaintiff, W.C. Watson, Esq., a close friend and relative of the testator, was appointed as administrator c. t. a.
By Item One of the will, the testator directed that his body be placed in a tomb to be erected either on his farm known as the Jasper W. Braswell place or on his lot in the town of Marion on McEachern Heights, the choice between the two locations being left to the executor's discretion.
Item Two contained the usual provision for payment of debts and expenses.
Item Three provided as follows:
By Item Four he devised the Jasper W. Braswell place, after the death of all of his brothers and sisters, to the State of South Carolina to be used "as a demonstration or experiment farm as a memorial to me for the purpose of advancing the science of agriculture, horticulture, animal husbandry, and such other sciences as are practiced on the farms of South Carolina". This item also contained provisions for the preservation of certain timber and for the placing of a suitable marker indicating the testator as the donor of the farm. This devise was formally renounced by the State by joint resolution of the General Assembly approved by the Governor on March 1, 1952.
By Item Six the testator directed that any indebtedness due him by his sister Lizzie E. Snowden or by the estate of H.P. Snowden be collected by his executor after the death of his said sister, and that the proceeds of that and any other debt due him at the time of his death "be added to the trust fund provided for in Item Three of this Will".
By Item Seven he directed that if any of his surviving relatives should desire to preserve his mother's home place as a memorial to her, or to use it for some charitable or philanthropic purpose, his interest therein should be used for that purpose, "but if this is not done then and in that event I will and direct that my interest in said property be collected and added to the fund named in Item Third of this will".
Item Eight directed that the testator's faithful colored tenant be allowed to remain on the farm so long as he might wish to do so, and that, so long as he remained there, he should be provided with a comfortable home, and that in the event of his becoming disabled the executor should provide him, from the funds of the estate, a comfortable living in accordance with his station in life, so long as he should live and remain on said farm.
Following are the provisions of the remainder of the will, other than Item Twelve, to which reference has already been made:
"Item Ninth: It is my will and I direct that all the rest and residue of my property both real and personal, except any money and any government or municipal securities, be sold and the moneys received therefrom and any money and government and municipal securities which I may have at the time of my death be added to the trust fund mentioned in the last paragraph of Item Third of this Will to be held and disposed of as provided in said Item Third.
"Item Tenth: It is my will and I direct that if the income from the fund provided for in Item Third of this Will should create a surplus after the provisions of Item Third of this Will have been amply complied with and the duties performed, said surplus may be used to aid the poor and indigent to obtain ...