| S.C. | Oct 10, 1884
The opinion of the court was delivered by
Burwell Boykin, late of Kershaw county, departed this life in 1861, seized and possessed of a handsome estate, consisting, among other things, of nearly 5,000 acres of valuable land in one body on the east side of Wateree River. He left surviving him a widow, Sallie W., and seven children, Eugene, John, Thomas L., Mary L., now the wife of Everard B. Cureton, Harriet A. Boykin, Sallie W., now the wife of T. H. Clarke, and Flora Boykin, for whom he made liberal provision by will. He gave to each of his sons, except Thomas L., $200, and to each of his daughters $4,000, the latter to be raised out of any money due him, and belonging to his estate, not disposed of by the will, and in case there should not be a sufficiency for the purpose mentioned, then the same to be considered as a charge upon the lands. He then provided as follows:
“Section 1. I desire that my wife and children may dwell together in my dwelling house, where I now reside. * * *
“Sec. 2. To my wife, Sallie W. Boykin, for and during the period of her natural life, and no longer, and subject to the first section of this will, I devise the dwelling house where I now reside, and all the out-buildings attached thereto, together with all and singular the household and kitchen furniture, of ever'y description, belonging to the premises, and also 200 acres of the tract of land whereon said dwelling house and out-buildings are
“Sec. 3.. I direct that all the rest of my real estate shall be kept undivided until the death of my said wife, to be worked by the slaves of my estate and those which I shall in this bequeath to my wife, under the control and management of my executors; and from and immediately after her death I devise the said real estate in this section referred to, to my sons, equally to be divided among them, share and share alike, to them and their heirs forever. If, however, I shall in the mean time by deed convey any portion of the said real estate to any of my sons, then the part so conveyed shall be taken and held by him as his portion of real estate to which he would otherwise have become entitled under the provisions of this section of my will. And should any of my sons die before the time herein appointed for the division of my real estate, and should leave issue living at that time, then I direct that such issue shall take among them, share and share alike, the same portion of real estate to which their parent would have been entitled if he had survived my said wife, to them and their heirs forever. And if any of my sons shall arrive at the age of twenty-one years before the death of my said wife, I direct that such son or sons shall be permitted to cultivate, ea'ch for himself, such a part of real estate as shall be allotted for that purpose by my wife and executors, until the final division, when he or they shall receive his or their own share, &c.
“Sec. 4. To my wife, Sallie W. Boykin, to her and her heirs forever, I give and bequeath the following named slaves, to wit:
“Sec. 5. To my wife, Sallie W. Boykin, to her and her heirs forever, I give and bequeath two thousand dollars ($2,000) in six per cent, state stocks of the State of South Carolina, and I hereby authorize and direct my executors to keep her supplied as long as she lives with suitable carriage and a pair of horses, to be purchased at the expense of my estate whenever they may deem it necessary, &c.
“Sec. 6. All the lights, privileges, devises, and bequests in this will and testament made and allowed to my said wife, Sallie W. Boykin, are intended, and by her must be taken, only in lieu of her right of dower in each and every portion of'my real estate,” &c.
The testator nominated his brother, A. II. Boykin, and his sons, Thomas L. Boykin and Burwell Boykin, as executors, but only Thomas L. Boykin qualified. He returned an inventory and appraisement of the estate, which showed that in round numbers, the negro slaves were valued at $60,000, the stock, plantation tools, &c., at $17,000, and the bonds and notes at $28,000. He paid the pecuniary legacies to the daughters as they came of age or married; but to enable him to do so, certain portions of the lands were assigned to the younger daughters, viz., tracts Nos. 1, 2, 3, and 4, aggregating 544 acres and a fraction, were assigned to Harriet A. Boykin, and tracts Nos. 5, 6, and 7, aggregating 382 acres, were assigned to Flora Boykin, in 1875. And in order to complete the payment of the daughters, also all the six per cent, state stock belonging to the estate, was sold, except the nominal amount of $1,000, which is still in the hands of the executor, but of no value.
The widow, Sallie W., accepted the provisions of the will in lieu of her right of dower in the lands, the 200 acres, including
It seems that the executor had never paid her the legacy of $2,000 in six per cent, state stocks, and now refusing even to continue the annuity of $600, and proper expenditures for renewal of furniture, carriage and horses, &c., she instituted these proceedings, alleging that all the available assets of the estate had disappeared, and praying that the executor should be required to pay her the $600 annually, the legacy of $2,000 in six per cent, state stocks, and money sufficient to renew her furniture and to purchase a carriage and horses as directed by the will; that the sums so ascertained to be due her should be paid out of the rents and profits of the undivided lands, which were to be kept together during her life, and were specifically charged with keeping up her establishment; and should that not be. sufficient for the purpose indicated, then that the same should be adjudged to be a charge upon the said lands.
At this stage of the proceedings, it transpired that there were persons other than the devisees who claimed to have an interest in the lands; that Thomas L. Boykin, the executor, being involved, possibly insolvent, had undertaken to sell certain parcels of the undivided lands, and to mortgage other portions to secure his individual creditors; and thereupon these persons so claiming were made parties defendant, and the following state of facts, given in the most general terms, appeared:
On May 31, 1872, Thomas L. Boykin contracted with Louis D. DeSaussure for agricultural advances, and to secure the same executed a mortgage of a certain tract of land described as containing 893 acres, with metes and bounds, &c. On January 8, 1873, he also contracted with Witte Brothers for advances to the amount of $9,000, and to secure the same executed a mortgage
These creditors and alienees of T. L. Boykin made vigorous opposition to the claims of the widow, the plaintiff. The issues were referred to the master, who took the testimony and made his report. Upon exceptions to this report, the cause came on for a hearing by Judge Hudson, who held that the sons of Bur-well Boykin took under the will vested interests in their respective shares of the land ; that the widow ivas not now entitled to the annuity of $600; but that she was entitled to recover the legacy of $2,000 in state stocks, and directing its payment out of the rents and profits, but declining to make it a charge upon the lands. From this judgment all the parties appealed. We think all the grounds taken by the creditors of T. L. Boykin are embodied in the appeal of Louis D: DeSaussure, which are as follows:
“That it was error in the Circuit judge to hold: 1. That the legacy of $2,000 to the plaintiff is not a specific legacy. 2. That the sons of the testator, Burwell Boykin, do not take as a class, but directly. 3. That the lands must be rented out and a receiver appointed to take charge of the rents to meet the support of the plaintiff. 4. That the plaintiff is entitled to a future provision for carriage and horses, repairs of furniture, &c., upon the grounds following:
uMrst. That the $2,000 of state stocks was a specific legacy, and if a devastavit as to it has been committed, the plaintiff must look to the executor by whom the devastavit was committed, and not to the testator’s estate.
11 Second. That the third clause of the testator’s will, as inter
“Third. That the defendant, Thomas L. Boykin, being the survivor of the class designated in the third clause of the will takes all the real estate, and his mortgages or conveyances of such real estate will give priority over any and all claims of the plaintiff upon such real estate for support, according to the terms of the will and circumstances.
“Fourth. That the provision in the second clause of the will in relation to repairs and renewal of furniture was for repairs and renewals as to furniture to be used in the dwelling house provided for the plaintiff in such clause, and her voluntary relinquishment of such dwelling-house was an abandonment of all claim for ‘repairs and renewals of fuimiture for same.’
“Fifth. That the provision for a carriage and pair of horses for the plaintiff was dependent upon the discretion of the executors ‘to be purchased at the expense of my estate whenever they may deem it necessary,’ and the sole qualified executor having by his answer stated that such were furnished as long as he thought necessary under the circumstances, such provision, if noiv deemed necessary to be made, can only be at the expense of the rvhole estate, and by contribution among all the devisees.”
Plaintiff’s Exceptions.
1. “Because his honor held that the plaintiff is not entitled to the annuity of $600 bequeathed to her in the fourth clause of the will of Bunvell Boykin, deceased.
2. “Because his honor held that plaintiff is entitled to interest only at the rate of six per cent, per annum on the legacy of $2,000 ‘in six per cent, state stocks’ bequeathed to her in the fifth clause of the will.
3. “Because his honor did not hold that all of the legacies given to plaintiff by the will, being given and accepted in lieu and bar of dower, were chargeable by law and the terms of the will upon the real estate devised.
4. “Because his honor did not hold that the defendant, Thomas
5. “Because his honor did not hold that the plaintiff had a life estate in the whole of the real estate.
6. “Because his honor held that none of the land devised was subject to the payment of these legacies to the plaintiff, when he’ should have held that at least the interest of Thomas L. Boykin in said lands should be subject to the payment of said legacies, under the fi. fa. authorized against him de bonis propriis.
7. “Because his honor undertakes to decide and determine how the judgment authorized against Thomas L. Boykin for these legacies will rank with respect to prior judgments against him or conveyances and encumbrances made by him without a sufficiency of evidence to show how they stand, and without that question being before him or involved at this juncture of the proceedings.”
The action was brought by Sallie W. Boykin, widow of Bur-well Boykin, deceased, for the recovery of legacies and to enforce the execution of other provisions of his will in her favor. In the progress of the cause, questions arose between Thomas L. Boykin, the executor, and his creditors. While it was proper to hear these creditors in opposition to the claims of the widow, which touched the property disposed of by the will in which the said Thomas L. had an interest, the Circuit judge did not undertake to adjudicate the rights of the creditors or adjust equities between the defendants; so that there is no question before this court except as to the rights of the widow, and as incidental thereto the construction of the will of Burwell Boykin.
First. As to the devise of the lands in the third clause. The important words are as follows: “I direct that all the rest of my real estate shall be kept undivided until the death of my said wife, to be worked by the slaves of my estate, and those which I shall bequeath in this to my wife, under the control and management of my executors; and from and immediately after her death
The three sons, Thomas L., Eugene, and John, were in esse at the death of the testator, and there could be no difficulty in the construction of the clause if the lands had been given to the widow expressly for life, and “from and immediately after her death to my sons equally, to be divided,” &c. It is admitted that if the terms had created an express life estate in the widow, they would have given a vested remainder in each of the sons to the extent of one undivided third. It is clear, therefore, that the alleged difficulty does not grow out of the words “to my sons equally, to be divided,” and that the doctrine as to classes, in so far as it gives the right of survivorship, has no application to the case. Whatever interest ivas given ivas in severalty. 2 Jarm. Wills (1st Am. edit.), 162, and note.
It is contended, however, that the lands were not given to the widow or any one else during her life; 'that there was a chasm between the death of the testator and that of the widow, in which the lands were not given at all, or at least no such particular estate was created, as is necessary to support a vested remainder; that the devise from and after the death of the widow, was an effort to give lands in futuro, which could only take effect as an executory devise; in other words, that the devise was contingent upon the sons surviving the mother, and as a consequence, if the other son, Thomas L. Boykin, also should die before his mother, the whole devise would be defeated. We cannot accept this view, which, as it seems to us, would not only run counter to the manifest intention of the testator to dispose of his whole estate, but would violate the settled rules of construction applicable in such
We concur with the Circuit judge that the devise created vested interests in the sons living at the death of the testator, and only the division and possession were postponed to the death of Mrs. Boykin. Mr. Jarman says: “The law favors the vesting of estates, the effect of which principle seems to be, that property which is the subject of disposition, will belong to the object of gift immediately on the instrument taking effect, or as soon there-' after as the terms thereof will permit. As therefore a will takes effect at the death of the testator, it follows that any devise or bequest in favor of a person in esse simply (i. e., without any intimation of a desire to suspend or postpone its operation) confers an immediately vested interest. If words of futurity are introduced into the gift, the question arises whether the expressions are inserted for the purpose of protracting the vesting, or point merely to the deferred possession or enjoyment. It may be stated as a generahrule that where a testator creates a particular estate and then goes on to dispose of the ulterior interest, expressly in an event which will determine the prior estate, the words descriptive of such event occurring in the latter devise ■will be construed as referring merely to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting.” 1 Jarm. Wills (1st Am. edit.), 727. Where a testator devises lands to trustees until A shall attain the age of twenty-one years, and if or when he shall attain that age, then to him in fee, this is construed as conferring on A a vested estate in fee simple, subject to the prior chattel interest given to the trustees, and consequently on A’s death, under the prescribed age, the property descends to his heirs at law, though it is quite clear that a devise to A if or when
There are directions in this will, that if any of the sons should come of age before the death of Mrs. Boykin, “such son or sons shall be permitted to cultivate, each for himself, such a part of the lands as shall be allotted for that purpose by my wife and executors until the final division, when he or they shall receive his or their own share.” The devise also contains a provision that if any of the sons should die before the time appointed for division, leaving issue, “such issue shall take among them the same portion to which their parent would have been entitled,” &c. Now one of the rules of construction adopted in this class of cases is, as it was tersely stated by Chancellor Kent: “A devise to A in fee, if or when he attains the age of twenty-one, becomes a vested remainder, provided the will contains an intermediate disposition of the estate or of the rents and profits during the minority of A, or if it directs the estate to go over in the event of A dying under age” (or before the event fixed for possession). 4 Kent, 205; Cadogan v. Ewart, 7 Adol. & Ell., 636; Rivers v. Fripp, 4 Rich. Eq., 298; Seabrook v. Gregg, 2 S. 0., 78; Smither v. Willcox, 9 Ves., 233; 1 Jarm. Wills, *739.
This rule runs through all the cases which were quoted and discussed by Chancellor Dunkin in Rivers v. Fripp, and by Chief Justice Moses in Seabrook v. Gregg, supra, and we conceive it to be unnecessary to do more than quote what Chancellor Dun-kin said in Rivers v. Fripp: “Although the reasons of this rule are various and more or less obvious, and, as might be supposed, have been received with more or less favor, the rule itself seems well settled. So from Boraston s case, 3 Rep., 19, down to the very recent case of Williamson v. Berry, 8 How., 495, words seemingly creative of a future interest, have been frequently construed to refer to the futurity of possession, and not as designed to postpone the vesting of the estate. In Boraston’s case there was a term of eight years devised to A and B, and after the said term the land to remain to executors for the performance of his will, till such time as H should accomplish his full age of twenty-
But assuming that the interests were vested, another view is suggested, that, inasmuch as the will shows that the testator intended the lands for his sons as a class, the court can and should declare cross-remainders among them, in order to effectuate that intention. As before stated, the will does provide that if any of the sons should die before their mother, leaving issue, such issue shall then take the share of their parent; but the will does not provide for the case of sons dying before their mother without issue. As that event has occurred, can the court supply the alleged omission, and declare that, the testator intended the interest of such deceased child to go to his surviving brothers, to the exclusion of his heirs at law generally ? It seems to us that it would be an unauthorized liberty thus to add, from mere conjecture as to the intention of the testator, an important supplement to the provisions of his will. It is true there are such things as cross-remainders by implication, but such implication 'must be absolutely necessary. We fail to see in this will anything which requires such an implication. In the case of Baldrich & Weston v. White, 2 Bail., 442, cited at the bar, it was held that “where in a devise to two, their several shares are limited over to third persons on the failure of issue of either of them, cross-remainders will not be implied.” In the case of Seabrooh v. Mikell, Cheves Eq., 80, the words were, “in case my surviving son shall depart this life without issue,” &c. The interests of the dead sons having vested, and, in the event which has occurred, not being limited over, must be distributed as other intestate property. See case of Smither v. Willcox, 2 Ves., 234, cited in the Circuit decree.
Second. As to the $600 to be paid annually to the widow, &c. After giving his widow certain slaves by name, the testator directed that “they may be worked on my general estate under the control of my executors, who shall, as long as she lives, pay to her
Third. As to the legacy of $2,000 in six per cent, state stocks, &c. It is in the following words: “To my wife, Sallie W. Boy-kin, to her and her heirs forever, I give and bequeath two thousand dollars ($2,000) in six per cent, stocks of the state of South Carolina.” This was not a specific legacy of the stocks in the sense that the legatee was to have the very thing bequeathed, as a horse, or a ring, the destruction of which would simply be the loss of the legatee. What was given? Not stocks, but dollars; not so many particular dollars in a bag and capable of delivery, but dollar’s generally. One of the earliest and simplest tests of a specific legacy was to inquire whether the legacy would be adeemed if the testator, after the execution of his will, disposed of the thing given. Now, suppose Mr. Boykin, after he made his will, had disposed of all his state stocks, would that have been an ademption of this legacy ? We should say not, for the reason that'the thing given was not “stocks,” but dollars.
The gift was in dollars; not in any particular dollars, earmarked and identified, but such a number of dollars ; and that makes this what is called a demonstrative legacy. This kind of legacy, while it is specific in its nature, differs so much in effect from one properly specific that if the fund out of which it is to be repaid is called in or fail, the legatee will not be deprived of his legacy, but be permitted to receive it out of the general assets; yet the legacy is so far specific that it will not be liable to abate with general legacies upon a deficiency of assets. 2 Wms. Exrs., *1043, and notes, quoting the civil law: “If the testator devise ten quarters of corn, coming of the corn which shall grow in such a soil, or two tons of wine of his grapes in such a vineyard, or ten lambs of such a. flock, though so much corn or wine or so many lambs do not arise of the things aforesaid, yet the heir or executor is compelled by law to make them good integraliter; because he may seem to have mentioned the soil, the vineyard, and the flocks rather by way of demonstration than by way of condition. Fulbecke’s Parallele, p. 37, edition of 1618.”
The statute of limitations is not interposed by the executor or legatees. It is, however, insisted that the widow was guilty of laches in demanding her legacy; that she stood by and without objection saw the assets destroyed or paid to her daughters, and
The legacy being given in lieu and bar of dower is, and should be, much favored in law. It was given for a consideration, and is therefore somewhat in the nature of a debt of the testator, but we agree with the Circuit judge that it was not charged upon the lands. The will certainly does not expressly make it a charge; and we do not think that the widow is entitled to be subrogated to the rights of the daughters, whose legacies were charged upon the lands, upon the ground that they were paid in part by the state stocks. That claim can only stand upon the view that “the stocks” were specifically given to her, and their use in paying the legacies of the daughters gives her the right pro tanto to stand in their place and set up in her favor the right of charge given to them. The conclusive answer to this is our ruling that the state stocks were not specifically given to the widow. If the legacy were a debt of the testator pure and simple,-and there were not assets to pay it, that of itself would not make it a charge upon any particular part of the estate specifically given to others, but would involve the question of general contribution by all the legatees and devisees. That question was not made in the proceedings, and we will not consider it now. The claim of the widow is so favored that it -would not have to abate for the payment of debts of-the estate; but it is a very different ques
The Circuit judge, in order to settle all rights as far as he could, declared in advance upon what. property the execution on the judgment herein rendered might or might not be levied. There are many questions in reference to the claims upon these lands yet to be determined, and we think it premature to decide now how, when, or upon what property that execution may be levied. We prefer to reserve our judgment upon that question until the case arises and is regularly argued.
With this slight modification as to the manner of levying the judgment and execution, the judgment of this court is that the judgment of the Circuit Court be affirmed.