The opinion of the court was delivered by: Moss, Justice.
B.L. Montague, late a resident of Sumter County, South Carolina, died testate on August 18, 1955, leaving of force and effect his last Will and Testament, which was validly executed and duly admitted to probate in the Probate Court for Sumter County, South Carolina.
The testator, by Item I of his said Will, provided for the payment of his just debts. By Item II of said Will, specific devises and bequests are made to the testator's wife, Mrs. Marie D. Montague. This Item gave to the surviving wife the residence of the testator, together with all of the furniture, furnishings and household goods therein contained, and an automobile. She was likewise given another house and lot located adjacent to the residence property. All of this property was devised to the wife in fee simple.
By Item III of said Will, "All the rest, residue and remainder of my property of whatever kind and description and wheresoever situated, I give, devise and bequeath the same unto my Trustees hereinafter named, IN TRUST, to, for and upon the following uses, trusts and limitations," that is, (a) To take charge of, manage and conserve testator's property, (b) To invest and reinvest any funds of the estate, (c) To sell any of testator's property upon the conditions stated in said Will, (d) To collect income and profits from said estate and property, and to use such income to pay the costs and expenses incident to the management and control of said property, pay any taxes levied or assessed against the same, and to pay for any necessary improvements or repairs incident to the conservation and preservation of any real estate owned by the testator. It is then provided that the Trustees are to use the remaining income for the comfort, support and maintenance of Marie D. Montague, the wife of the testator. It is provided that in the event the net income is insufficient to properly and suitably support and maintain the said Marie D. Montague, or in the event of any illness or other emergency which may arise, then the Trustees are empowered to make the necessary expenditures for any such purpose from and out of the corpus or principal of the estate.
By Item IV of said Will, it was provided that the income given under Item III for the use and benefit of the wife of the testator, inclusive of any payments of corpus or principal which may be needed as above provided, shall continue for and during the term of her natural life, "together with the further power to my said wife, Marie D. Montague, and with full authority on her part to dispose of the said property by her Last Will and Testament."
Item V of the said Will of B.L. Montague provides that in the event his wife, Marie D. Montague, failed to exercise the power of appointment conferred upon her under Item IV of said Will, or should there remain at the time of her death any property of said estate which may be otherwise undisposed of, then, and in either event, the testator devised and bequeathed such to his three children in equal shares and proportions. This Item then provided as follows: "At the present time I own sixty (60) per cent of the outstanding capital stock of B.L. Montague Company, Incorporated. In the final distribution and settlement of my estate it is my will and I so direct that this stock shall be divided among and distributed to my said three children in equal shares and proportions, that is to say, twenty (20) per cent of said stock to each of said children."
The net amount of the testator's residuary estate was approximately $658,000.00, consisting of miscellaneous securities, cash, real estate and other property, and of this net residuary estate $321,000.00 was in capital stock of B.L. Montague Company, Inc.
The South Carolina Tax Commission, the respondent herein, assessed an inheritance tax against her net estate plus the entire residuary estate of her husband, B.L. Montague, on the ground that Marie D. Montague possessed a general testamentary power of appointment over said property, and having failed to exercise the said power, the same was taxable under Section 65-461 and 462 of the 1952 Code of Laws of South Carolina.
L.D. Montague, as Administrator of the Estate of Marie D. Montague, deceased, the appellant, herein, seeks a review of the order of the South Carolina Tax Commission assessing an inheritance tax of $27,151.62 against the estate of Marie D. Montague. The tax, as so assessed, was paid under protest, and this appeal was taken pursuant to Section 65-510 of the 1952 Code of Laws of South Carolina. The appeal presents two questions for determination. (1) Did Marie D. Montague have a testamentary power of disposition over the stock of B.L. Montague in B.L. Montague Company, Inc.? (2) Is property subject to inheritance tax in the estate of the donee with testamentary power of disposition, when such donee dies intestate, thus failing to exercise the power?
It is the contention of the appellant that the language quoted from the last part of Item V of the Will of the testator takes the stock out of the power of appointment and directs that it be distributed equally to his three children. The respondent contends that under a proper construction of said Will, Marie D. Montague, the wife of the testator, was given and had a testamentary power of appointment not only with respect to the other properties of B.L. Montague, but also with respect to the stock owned in B.L. Montague Company, Inc. This controversy, of necessity, brings up the question of the proper interpretation of the Will of the testator. It must be construed in order to determine whether or not Marie D. Montague had a testamentary power of appointment with respect to the corporate stock owned by the testator.
"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. ...