Newton v. McLaurin

Sections 3633 and 3634 of the Code of Laws, 1912, are as follows:

3633. "If any person shall die after the first day of March in any year, the crop on the lands which were in the occupation of the deceased shall be assets in the executor's or administrator's hands, subject to the debts, legacies, and distribution, the taxes and expenses of cultivation of such crop being first paid."

3634. "The emblements of such lands which shall be covered before the last day of December following, shall, in like manner, be assets in the hands of the executors or administrators; but all such emblements growing on the lands on that day, or at the time of the testator's or intestate's death, if that happens after the said last day of December and before the first day of March, shall pass with the lands."

The will of Mary Gibson provides that —

"After all my just debts are paid, I will and bequeath to my daughters, Miranda Gibson and Penelope Gibson, the use of all my property, both real and personal, during their natural lives."

This provision of the will, standing alone, shows that as Penelope died after the 1st day of March, 1917, the crops of that year belonged to her and did not pass with the land. Newton v. Odom, 67 S.C. 1, 45 S.E. 105. But the foregoing must be construed with the following provision:

"It is my will, that should the income of my estate exceed enough to comfortably support my daughters, Miranda Gibson and Penelope Gibson, or one of them, should one of them die or marry, the said excess or surplus I will to be equally divided among the rest of my children, then living."

As Penelope died after the 1st day of March, 1917, she had an interest in the crops of that year to the extent of a comfortable support, until her death. Having reached this conclusion, it necessarily follows that the excess, or surplus income of 1917, must be equally divided among the children of the testatrix living at the time of Penelope's death.

It cannot be successfully contended that there was not a surplus, or excess, of income in 1917, on the ground that the income of previous years, in the hands of the administrator at the time of Penelope's death, rendered unnecessary a resort to the rents collected in 1917 for the comfortable support of Penelope. The answer of the defendant relative to this question is as follows:

"Since the death of the said Miss Penelope Gibson, by reason of this suit and the cost of the burial expenses, and other accounts for supplies and merchandise furnished her, he has paid out the sum of $1,167.65. That if this is charged against the amount which was on hand at the time of the death of the said Miss Penelope Gibson, there is left the sum of $316.68, and respondent is informed, and believes, that the major portion of the amount on hand with him is income which has arisen since the death of Miss Penelope Gibson, and to which it is contended she had no right, but under the will it goes to the owners of the soil from which it was accrued, and that the only part of the rentpaid for the year 1917, that would be applicable as incomeaccrued during the life of Miss Penelope Gibson would besuch proportionate part of the entire rent as the period ofthe year before March 8th bears to the whole year, and that the relators and the surviving brother mentioned in the said proceedings are not entitled to take over the fund on hand with him, to the exclusion of the other children of the testatrix, their heirs or assigns."

The words which we have italicized show that the defendant does not dispute the fact that Penelope was entitled to a part of the income of 1917. Therefore, under the express provisions of the will, the children of the testatrix living at the time of Penelope's death were entitled to the surplus income of that year. Furthermore, the $316.68 hereinbefore mentioned represented the surplus or excess of income during the previous years, and was not applicable to the debts of Penelope, but those of the children of the testatrix living at Penelope's death were entitled to it.

For these reasons, I concur in the opinion of Mr. Justice Watts.