Drennan v. Agurs , 98 S.C. 391 ( 1914 )

The opinion of the'Court was delivered by

Mr. Chiee Justice Gary.

This is an action to set aside the residuary clause of a will, on the ground that it is null and void, for the reasons hereinafter mentioned.

The facts are fully stated in the report of the master, which will be reported, together with the appellants’ exceptions, and a copy of the will.

The first question that will be considered, is whether there was error on the part of his Honor, the Circuit Judge, in concluding, as a matter of law, that the devises and bequests, contained in the residuary clause of the will, are for charitable uses, and therefore valid and operative in law.

That clause of the will is as follows: “The balance of my estate to be used for keeping up the Agurs line of graves at Fishing Creek Church, and also used as an endowment fund for the benefit of Fishing Creek Church.”

The following findings of fact by the master do- not seem to be disputed: “That said church is an unincorporated institution, conducted for religious purposes, and its property and affairs are under the management and control of said trustees-; that the graveyard at Fishing Creek Church,' in which the Agurs line of graves are to be found, is located wholly upon the property of that church, and that the care and general management of said graveyard constitutes a part of the work of that church. While its general care and oversight is received from said church, yet it is not restricted to its membership, but said graveyard is used as a place in which the remains of the dead of the community are interred.”

1 When the residuary clause is construed, in connection with the other parts of the will, it shows that the intention was that Fishing Creek Church should take charge of the entire residue, not only so much thereof as was to be used in keeping up the Agurs line of graves, but also that part that was to be used as an endowment fund, for the benefit of said church, thereby constituting Fishing Creek Church a trustee, for the purpose of administering the trusts created by the residuary clause.

If such had not been the intention of the testatrix it is but reasonable to suppose that she would have used other words to- express her intention. She evidently thought it was necessary to appoint trustees, to carry the provisions ■of the will into effect, as is shown by the following language of the will: “This will is to testify that I want three hundred dollars in money put out on interest, the three hundred dollars to have good, security, the interest ■of the three hundred dollars to be put into the hands of ■some responsible person, who will have my lot in the ■cemetery in Columbia, S. C., kept in good order; the interest of the three hundred dollars will be sufficient.

“I appoint Willie Huey as my executor of estate to pay the person, who has the lot attended to, and also keeping the lot in order.”

2 The words providing that a part of the residuary estate was to be used for keeping up the Agurs line of graves at said church, were not intended to create an enforcible trust, but they were of a precatory nature. The testatrix intended, to emphasize the manner in which, she wished a part of the residue expended, but left the matter to- the discretion of Fishing Creek Church. The amount to be expended was not specified, nor the manner in which the trustee was to keep up the said graves,, as was done when provision was made for keeping in order her lot in the cemetery in Columbia.

These conclusions show that none of the exceptions can be sustained.

Judgment affirmed.

Mr. Justice Watts dissents.

Footnote.—-As to validity of testamentary provision for erection of monument, or for the care and maintenance of tombs, burial grounds, etc., see notes in 1 British Ruling Cases 931 to 947. As to validity of gift to an unincorporated charity, see note in 32 L. R. A. 625.