51 S.C. 366 | S.C. | 1898
The opinion of the Court was delivered by
Mrs. Hattie C. Ruddell died about the 31st of March, 1877, seized and possessed of a considerable estate, both real and personal, which she disposed of by her will, bearing date the 26th of March, 1877, a copy of which, as set out in the “Case,” should be incorporated in the report of this case. Of this will the defendant, J. H. Ruddell, was appointed executor and duly qualified as such. The testatrix left surviving her her husband, the said J. H. Ruddell, and four children, viz: Walter G., Alice Norma (who has since intermarried with Paul H. Allen), Julian Munford, and Malcolm Feonard, the last two of whom have died since the death of the testatrix, unmarried and childless, and their shares, by terms of the will, became vested in their surviving brother, Walter G. Ruddell, and their sister, Alice Norma Allen; and thus the plaintiff and the defendant, Walter G. Ruddell, are now entitled to the property devised by the testatrix to her four children.
In the first item of the will, the testatrix directs that her debts and funeral expenses shall be paid by her executor out of her estate as soon after her decease as he may find it convenient to do so. The next item reads as follows: “I give, devise and bequeath to my beloved husband, John H. Rud-dell, $7,000, $4,000 cash, balance in annual instalments from net proceeds from estate.” In the next item she gives, devises and bequeaths to her four children, naming them, and such
It appears from the testimony that the executor, upon the death of this wife, took charge of the entire estate and managed it very much as if it had been his own; and to say the least of it, his management was far from conducive to the interests of the persons entitled thereto. He allowed one of the places — “Sandy Hook” — to be sold for taxes, and bid off by his counsel, the late Jeff. Warren, Esq., and on the 1st
The main object of this action is to have the mortgages above referred to, and the deed from J. H. Ruddell to W. W. Morris, declared void and set aside, and for a partition of the land between the plaintiff and the defendant, W. G. Ruddell, according to their respective rights. It is true, that in the complaint there is a demand that J. H. Ruddell shall account, as executor, and for judgment for any balance that may be found against him on such accounting; but that matter does not appear to have been considered or passed upon by the Circuit Judge, and there is no exception to his failure to do so, and hence it is not before us for consideration. The case was heard by the late Judge Farle upon the testimony as reported by the master, which is set out in the “Case,” and he rendered his decree, in which, without stating the facts, he simply states the questions involved, and renders judgment that the said mortgages and the deed from J. H. Ruddell to W. W. Morris be cancelled and set aside; that the legacy to the defendant, J. H. Rud-dell, is not a charge upon the real estate devised to the children of testatrix; and that plaintiff is entitled to partition, but he adds: “The rights of said cotenants (the plaintiff and defendant, W. G. Ruddell), at request of counsel, are reserved, with leave to apply, at the foot of this decree, for any relief between themselves to which they may be entitled, in the event that negotiations now pending for a friendly adjustment of their rights shall not be successful.”
From this judgment the defendants, J. H. Ruddell and W. W. Morris, appeal, upon the several grounds set out in the record; but these grounds need not be stated here, as
While it is true that the testatrix, in one of the items of her will, does devise and bequeath to her children “all the balance of my estate, real and personal and mixed” — a circumstance much relied on in Moore v. Davidson and Jaudon v. Ducker, supra — yet in the same item she goes on to specify particularly what the property so devised and bequeathed consisted of, viz: her four plantations, known as “Joint Stock,” “New Castle,” “Sandy Hook,” and “Ivanhoe,” together with the stock, provisions, horses, mules, farming implements, &c., on said plantations; and then adds these words, “and also balance of stock [which can hardly mean live stock, as that was mentioned only a few lines above], monies on hand and due me at the time of my decease.” The use of the word '•'■balance''' in the quotation indicates that she expected a portion of the “stock, monies on hand and due,” would be applied to the payment of debts and that portion of the legacy directed to be paid in cash, and hence only the balance thereof was given'to the children. These circumstances are quite sufficient to differentiate this case from the cases of Moore v. Davidson and Jaudon v. Ducker, cited above as authority for the principles
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.