The opinion of the court was delivered by: Moss, Justice.
This action is brought for the purpose of having the Court construe the meaning, intent and effect of the will of James Alonzo Miller, who died on December 22, 1954, leaving in full force and effect his will dated December 17, 1953. Such action is authorized by Section 10-2003 of the 1952 Code of Laws of South Carolina.
The testator, after providing for the payment of his debts, disposed of his estate as follows:
"Item II: I give and bequeath to my grandson James Bruce Miller, son of my deceased son Adley Bruce Miller, the sum of Five Hundred ($500.00) Dollars.
"Item III: I give, devise and bequeath to my beloved wife Hasell Hall Miller, my residence now designated as 1318 Madison Avenue, Florence, South Carolina; whatever automobile for personal use I have at the time of my death, together with any monies and all personal property left after payment of the specific legacies and bequests herein and all my debts.
"Item IV: I give and bequeath my business called `Miller's Termite Control', including trucks, equipment, stock and good will (or under any other name which may be hereafter adopted) to be equally divided among my children living at the time of my death, and among the child or children of any deceased child of mine, other than my grandson James Bruce Miller, such child or children to take the share of the deceased parent. In case there are no monies left in my estate at the time of my death, my automobile and other personal property hereinabove bequeathed to my wife shall be sold for the payment of my debts and the legacy to James Bruce Miller, the business called `Miller's Termite Control' not to be subject to the payment of my debts and legacies in the remaining items of the within will, until other personal property has been exhausted."
The testator was twice married. At the time of his death there were living two daughters by the first marriage, Elizabeth Miller Rikard and Ann Ruth Lester, and seven children of a predeceased son, who are the appellants. The testator's second wife. Hasell Hall Miller, by whom he had no children, is the person mentioned in Item 3 of said will, and is the respondent herein.
The respondent contends that the bequest contained in Item 4 of said will has been adeemed by the sale of said business by the testator, in his lifetime, and that the appellants took nothing under this Item of the will. The respondent also contends that by virtue of the language used by the testator in Item 3 of his said will that she takes the cash received from said sale and also the note and chattel mortgage representing the balance of the purchase price.
The legal issues involved in this case were argued before the Honorable G. Badger Baker, Resident Judge of the Twelfth Circuit, and by his Order dated April 23, 1956, he sustained the position of the respondent. The appeal is from such Order.
The exceptions raise three questions: (1) Was the bequest of the property described in Item 4 of the will adeemed by the sale thereof by the testator? (2) Assuming that an ademption has taken place, would the proceeds of sale from the property mentioned in Item 4 of the will pass to the appellants? (3) Was the Court in error in holding that the residuary effect of Item 3 of the will sufficient to carry the proceeds of the sale of the property to the respondent?
It is a fundamental rule that in construing the provisions of a will, the intention of the testator at the time the will is executed, is the primary inquiry of the Court. Roundtree v. Roundtree, 26 S.C. 450, 2 S.E. 474. In arriving at the intention of the testator, the will must be read and considered as a whole. Watson v. Wall, 229 S.C. 500, 93 S.E.2d 918; Padgett v. Black, 229 S.C. 142, 92 S.E.2d 153.
"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 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 ...