Dunlap v. Garlington , 17 S.C. 567 ( 1882 )

The opinion of the Court was delivered by

Mr. Justice Fraser.

William Dunlap departed this life in 1839, leaving in force a will which was duly admitted to probate. He left surviving him his widow, a daughter Nancy, and other children. Nancy intermarried with Ewell Black, and of this marriage were born several children, the plaintiffs, and the defendant W. D. Black. After the death of Ewell Black, Nancy intermarried with the defendant Chancy M. Miller, and to them was born one child, the defendant Eloise W. Shell. Nancy died in 1872, all her children above named and her husband, Chancy M. Miller, surviving her. ■ .

Tlie will of William Dunlap contains two clauses under which, the controversy in this case arises. In one clause he gives to certain trustees real and personal property “ in trust for the sole and separate use and benefit of my daughter Nancy and the lawful issue of her body,” and after describing the property adds: “ It is my will and desire that all the aforesaid property be and remain in the uninterrupted possession of my daughter Nancy; and should my daughter die leaving no lawful issue of her body, it is. my will and desire that the aforesaid property, both real and personal, revert back to my estate.”

In another clause he gives certain real and personal property to his wife for life, and at her death as follows: “ It is my will and pleasure that all of the property herein bequeathed to. my wife be and remain in her possession during'her natural life, and at her death to be sold and the money arising therefrom be equally divided among all my children, share and share alike, the grandchildren to represent the interest of their deceased parent, and that portion which may be coming to such child, whose interest is secured in trust, I hereby direct my executors to pay over the same to their trustees.”

John Garlington alone qualified as executor of the will, and H. W. Garlington alone of the persons named assumed the trust in favor of Nancy. The property, which passed to the widow of William Dunlap under the second of the above clauses, was sold at her death by the executor, and H. W. Garlington, as trustee for Nancy, received her share, and as a part thereof two sealed notes executed to him by John Garlington, one of May 31, 1862, for $3372.56, and one of March 4, 1863, for $5147.41, which were secured by a mortgage of real estate. After the death of John Garlington, the executor, his executors sold a part of his estate, and Chancy M. Miller, the defendant, purchased a lot of land known as the “ Shockley house and lot,” and paid for it by putting a credit on the note for $5147.41. This transaction was in January, 1870, and the amount of the credit given was $2020, being $82.91 in excess of the interest then due thereon. The balance of said two notes was established in a proceeding to settle the estate of John. .Garlington. The credit of $2020 on said note was signed by C. M. Miller, and the title to the Shockley place was made to him. This lot of land he subsequently conveyed to the defendant Eloise ~W. Shell, his daughter.

.This Court concurs with the master and the Circuit Judge in the’ findings of fact. Chancy M. Miller at no time was trustee or assumed to act as trustee in-reference to this property, and his dealings in regard to it must be construed with reference to his marital rights.

The appellants claim that this Shockley place and the balance of the two notes are distributable amongst the issue of Nancy. The Circuit Judge holds that plaintiffs, appellants, are entitled to no interest in the Shockley place, and “that the balance of the two notes is distributable amongst her children and her husband — i.e., her heirs at law and distributees, according to the Statute — and not amongst the heirs of her body.” If the property in dispute is controlled by the terms of the first of the above recited clauses of the will, and if it should be held that the same was in trust for Nancy during her life, with valid remainders over, then it is 'clear that so much of the $2020 paid for the Shockley place as was interest on the note on which that amount was credited was received by the husband with the knowledge a/nd consent of the wife, and became absolutely his property. Hill Trust. 425; Charles v. Coker, 2 S. C. 136; Reeder & Davis v. Flinn, 6 S. C. 216.

All this property, however, must be regarded as personalty, the real estate having been sold under the directions of the will.

The words create an executed trust, and Nancy would have taken in real estate a fee conditional, and “ words which convey only a life'estate or a conditional fee in land gives an absolute estate in personal property.” Carr v. Porter, 1 McC. Ch. 60; Bedon v. Bedon, 2 Bail. 248; Daintry v. Daintry, 6 T. R. 307; Hervry v. Felder, 2 McC. Ch. 339; Addison v. Addison, 9 Rich. Eq. 68.

The second of the above clauses, however, by which this property was conveyed, does not expressly refer to the first, and the only circumstance wbicb indicates that, they are to be construed together, and the terms of the first to control the gifts under the second, is the direction in the second to pay over certain ^shares to trustees, who are named in the first clause. This of itself would not be sufficient to annex the terms of the gift under the first clause to the gift under the second, where the second is itself silent. It is by no means clear, however, that they would be consistent with each other even if the limitations claimed to have been created by the first are held to be valid. Under the first the limitations would have been to “issue of her 'body,” a term of very much larger import, and including classes of persons not embraced by the word “ grandchildrenj” to whom the property was given under the second clause in the event of Nancy’s death before her mother.

The true construction of this second clause is that the gift is to Nancy absolutely, and if she should die before her mother, whose death is the period of distribution, then her children, the grandchildren of testator, are substituted in her place, and they take absolutely. Issue are not necessarily grandchildren.

The words used are not sufficient to create a life estate only in Nancy, or even an estate over which her husband could have no control. There should have been unequivocal evidence of “ an intention to exclude the husband from, all control. The mere gift to a trustee is not enough.” Perry, Trusts, §§ 648, 649.

This Court therefore concurs with the Circuit Judge in the conclusion that the compla.int be dismissed so far as it seeks a sale or partition of the town lot sold by C. M. Miller to Eloise "W. Shell, and in the judgment of the Circuit Court as to the balance of the funds. If an administrator of Nancy Miller, deceased, should be a necessary party, the proper order can be made by the Circuit Court before the distribution of the fund.

It is therefore ordered and adjudged that the exceptions be overruled, the judgment of the Circuit Court affirmed, and the appeal dismissed.