Beard v. Jones , 45 S.C. 102 ( 1895 )

The opinion of the Court was delivered by

Mr. Chiee Justice McIver.

1 While there are other questions presented by the pleadings, the only question presented by this appeal is as to the disposition of the income of the estate of the testator, while awaiting the time appointed by the will for the distribution of the estate, which has not yet arrived. That question depends upon the inquiry as to what is the proper construction of the will; and his Honor, Judge Ernest Gary, who heard the case on circuit, rendered the following decree:

“This case coming on to be heard by me as to the proper construction of the last will and testament of Christopher Jones, deceased — the other questions made in the complaint having been settled by the parties before the hearing of this case — after hearing argument of the counsel for and against the proposition contended for, it is considered by the Court and it is adjudged, that the executor and executrix of the estate of said Christopher Jones, deceased, are authorized and empowered by said will to use all of the income, rents, and profits of said estate for the maintenance and education of the widow and minor children of said testator until the youngest child attains the age of twenty-one years, if so much be necessary for that purpose; and that if the said income, etc., is necessary for the maintenance and education of the widow and minor children of said Christopher Jones, then this plaintiff and the other children of said testator who have passed the age of twenty-one years are not entitled to any portion of the same. It being admitted at the bar by the counsel for plaintiff that said income, etc., up to the present time, has not been more than sufficient for the maintenance and education of the widow and minor children, it is, therefore, further ordered, that the complaint herein be dismissed.”

From this judgment the plaintiff appeals upon the several grounds set out in the record, which should be incorporated in the report of this case.

The practical question made by these grounds is, whether the income of the estate, while in the hands of the executors awaiting the coming of age of the youngest child, the period at which the testator directs that his whole estate shall be equally divided amongst his wife and ehildren, share and share alike, shall be kept together and appropriated to the maintenance of the family and the education of the children, or whether such income as it is received shall be equally divided amongst the wife and children, so that the wife and each child shonld receive one-eighth part thereof, there being seven children. Of course, the solution of this question depends upon the inquiry, what was the intention of the testator, as disclosed by the terms of his will, read in the light of the surrounding circumstances.. For this purpose a copy of the will should be incorporated in the report of this case.

That instrument, though not couched in such formal and precise language as would have been employed by an expert, plainly evinces that the primary object of the testator was to secure for his children a good education, and the suitable maintenance of his wife and children whilst that object was being attained. For this purpose, therefore, he devotes not only the whole income of his estate, but even goes further, and provides for a sale of so much of the corpus of his estate as might be necessary to accomplish this paramount object, if the income should be insufficient for that purpose. There is not a word in the will which indicates any intention that the income should be divided; and, on the contrary, a division would be wholly inconsistent with the manifest scheme of the will, and would probably frustrate the accomplishment of the main object of the testator. It being admitted that the whole income of the estate has not been more than sufficient to accomplish the primary purpose of the testator, any inquiry as to what should be done with the surplus of the income, if there should be such a surplus, presents a purely speculative question, and hence such an inquiry cannot be entered upon in the present case. The view which we have taken is supported by the case of McFeely v. Gadsden, 2 Strob. Eq., 69, cited by counsel for respondents, which, though not directly in point, is quite analogous to the present case.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.