Humphrey v. Campbell , 59 S.C. 39 ( 1900 )

As I am not able to concur in the opinion of Mr. Justice Pope, I will state briefly the grounds of my dissent. The master in his report found the following facts: 1. That on the 2d day of March, 1888, the plaintiff, William F. Humphrey, was by a deed of indenture between George Bliss, of New York, party of the first part, and William F. Humphrey, of Boston, party of the second part, duly appointed trustee for Mary Butler Campbell and Mary Bennett Campbell. 2. That the trust estate consisted of certificate No. 81, of thirty-nine shares or parts in the Coosaw Mining Company. 3. That the trusts upon which the said trust estate was held were as follows: "1st. That the said party of the second part (William F. Humphrey) shall receive and collect the income profits and dividends as often and whenever the same shall be payable, and after deducting all incidental expenses, shall pay over the same as follows: To Mary Butler Campbell, the income from nineteen of said shares or parts, and to Mary Bennett Campbell, the income arising from twenty shares or parts during their several lives. 2d. That the said Mary Butler Campbell,and Mary Bennett Campbell shall each have full right andlegal power to distribute her share of the trust estate by will, and if either leaves no will, the provisions of the will of the other shall govern the distribution or disposition of the whole of said trust estate." 4. That on the 15th day of August, 1891, Miss Mary Butler Campbell departed this life, leaving of full force and effect her last will and testament, in which said will the said Miss Mary Butler Campbell provided as follows: "First. I direct the payment of all my justdebts and liabilities, particularly the indebtedness now duethe Confederate Home of Charleston, S.C., of $1,600 held by me in trust for its benefit, and also the sum of $800 due Harriet Poyas Walker, of Charleston, S.C. * * *" (italics ours). Even conceding that Mary Butler Campbell took a life estate in the first instance (though under the authority of Jackson v. Jackson, 56 S.C. 346, doubt may be entertained upon this question), and further conceding that the authorities cited (to which may be added the recent case ofSires v. Sires, 43 S.C. 266,) sustain the general principle announced in the leading and concurring opinions, nevertheless this does not determine the question presented by this appeal. The foregoing principles are wholly inapplicable to this case. The practical question raised by this appeal is whether the direction by the testatrix, Mary Butler Campbell, that all her just debts be paid, "particularly the indebtedness now due the Confederate Home of Charleston, S.C." can be regarded as an exercise of the power to "distribute" her share of the trust estate by will. As I fail to see that these words are susceptible of any other interpretation than that they are a proper exercise of said power, I must dissent from the conclusion announced in the opinion of Mr. Justice Pope.