## Facts

- Mahalie Cummings Epting executed a will addressing the disposition of her real estate among her four children: two daughters (Eula and Chloe) and two sons (J. Cornelius and Quincy A.).
- In Item V, Mahalie devised all her real estate to her daughters “to have and to hold in fee simple absolute,” and provided that if either daughter died, the property would go to the surviving daughter.
- Item V further stated that if both daughters died “without issue, either before or after my death,” then the property would go to Mahalie’s two sons in equal shares.
- Item V also stated that if either son died before the two daughters, that son’s child or children would take the portion the son would have taken.
- One daughter, Eula, died unmarried and without children.
- The two sons died and left a combined eight children (Mahalie’s grandchildren).
- At Mahalie’s death, Chloe was Mahalie’s only living child.
- The devised land included timber. Chloe received an offer to buy the timber and alleged it was insect-infested and would soon lose value.
- Chloe filed an action seeking a declaratory judgment that she owned the real estate in fee simple absolute, naming her eight nieces and nephews as defendants.
- The nieces and nephews contended Chloe held less than a fee simple (asserting that they held the future interest their fathers would have received) and sought relief to prevent removal of the timber or to protect the proceeds.

## Issues

1. Did Item V give Chloe Epting a fee simple absolute, or did the “die without issue” clause create a valid future interest in Mahalie’s sons (or their children) that limited Chloe’s title?

## Decision

- The Court of Appeals of South Carolina affirmed.
- The court held Item V devised Chloe a fee simple estate.
- The court agreed with the trial court that the later limitation over (the “die without issue” gift to the sons and then to their children) was repugnant to the express grant “in fee simple absolute” and therefore did not cut down Chloe’s estate.
- Because Chloe held the property in fee simple, the grandchildren had no enforceable interest that restricted Chloe’s ownership or disposition of the property (including the timber).

## Legal Principles

- A will is construed to give effect to the testator’s intent as expressed in the will read as a whole, so long as the intent does not conflict with settled rules of law.
- On appeal, the court’s role is limited to correcting errors of law.
- When a will uses clear language granting a fee simple absolute, later provisions attempting to divest or reduce that estate are strictly construed and will not be given effect when inconsistent with the express fee simple grant.
- A limitation over that conflicts with an unequivocal fee simple devise may be treated as repugnant and void, leaving the first taker with an indefeasible fee.

## Conclusion

The court concluded that Mahalie’s will expressly vested Chloe with a fee simple absolute in the real estate, and the later “die without issue” clause and gift over to the sons and their children could not operate to defeat or limit that fee simple; therefore, Chloe owned the property outright and the grandchildren took nothing under Item V.


Epting v. Mayer, 323 S.E.2d 797 (1984)