46 S.C. 169 | S.C. | 1896
"The opinion of the court was delivered by
The report of the referee and the decree of the Circuit Judge, which will be embraced in the report of this case, so fully and clearly set forth the facts, and present the question involved, as to supercede the necessit}'' of any further statement here.
The main question is as to the proper construction of the following clause in the will of the late Dr. D. Reese Gregg: “Sixth. I devise and bequeath to my son, Reese C. Gregg, all the residue of my eatate, both real and personal, and to his care the protection and support of my daughter, Catherine W. Gregg, during her natural life.” The cardinal rule in the construction of a will being the intention of the’testator, the practical inquiry in this case is, whether the testator intended, by this clause, to fix upon the residue of his estate, devised and bequeathed to his son, Reese, which appears to have been much the larger portion of his estate, a charge for the support of his daughter, Catherine, during her natural life, or whether his intention was simply to enjoin upon his son a mere moral obligation to support the daughter.
The appeal of the Imperial Fertilizer Company raises two additional points: 1st. That the Circuit Judge erred in not vacating the order permitting Catherine W. Gregg to amend her answer. 2d. That he erred in not holding that the Imperial Fertilizer Company could not be affected in any way by the agreement between Reese C. Gregg and his sister, of which it had no notice, either actual or constructive. As to the first point, the referee reports that the order was made by consent, and there is nothing in the “Case” controverting that statement; and this effectually disposes of that point. As to the second point, we do not understand that the Circuit Judge bases his decree upon the agreement referred to, unless, possibly, so much of his decree as fixes the amount due the defendant, Catherine, for her support; but as the Circuit Judge also found as matter of fact, to which finding there is no exception, that, under the evidence, the amount mentioned in the agreement was reasonable and proper, we do not think there is anything in this point. Indeed, it appears from the “Case” that the agreement referred to was received in evidence without objection, and it is too late to object now.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.