46 S.C. 230 | S.C. | 1896
The opinion of the court was delivered by
On the 29th day of June, 1895, the plaintiff above named commenced his action in the Court of Common Pleas for Richland County against the defendant, wherein he prayed the judgment of the court, for its direction to him in regard to the true construction of the last will and testament, and codicil thereto, of his deceased wife, Mrs. Julia H. Clarke, especially the fifth clause
“I, Julia H. Clarke, wife of Henry P. Clarke, residing near Eastover, in Richland County, State of South Carolina, being of sound and disposing mind and memory, do make and ordain this my last will and testament, and hereby revoke all other wills by me at any time heretofore made: First. I direct that all my just debts and my funeral expenses shall be fully paid by m}' executor hereinafter named. Second. I direct that a portion of my estate, sufficient to produce $1,000 annually, shall be safely invested by my executor, and the said $1,000 be paid annually to my father, S. H. Hurd, now in New York city, in quarterly payments, during his natural life. Third. I give and bequeath to Mrs. Raura Sherwood, of Bridgeport, Conn., the sum of $10,000. Fourth. I give and bequeath to Miss Agnes C. Patterson, of said Bridgeport, the sum of*237 $5,000. Fifth. The rest, residue, and remainder of my estate, real and personal, of whatsoever description and wherever situated, I give, devise, and bequeath as follows: One-half thereof to my husband, Henry P. Clarke, and one-half thereof to my said husband in trust for my daughter, Nancy, until she becomes twenty-five years of age, and then to pay over the whole sum to her; but if she shall marry before that age, with the consent and approval of her father, or, in case of his death, with the consent and approval of her then guardian, then I direct that one-half of her share shall be paid to her upon her marriage, and the other half when she becomes twenty-five. In case I shall leave surviving me one or more children besides my daughter, Nancy, then I direct that the said rest, residue, and remainder of my estate shall be divided equally among my said husband and all of my children, share and share alike, my husband and my children sharingper capita, and the shares of my said children to be held in trust as above provided in the case of Nancy as being the only one. And I give, devise, and bequeath the said rest, residue, and remainder as aforesaid to each, and to their heirs and each of them forever. I constitute and appoint my said husband, Henry P. Clarke, to be executor and trustee of this my will, and direct that no bond be required of him under either appointment.”
On the 11th day of November, 1893, at her residence near the city of Columbia, in Richland County, and State of South Carolina, the said Mrs. Julia H. Clarke made a codicil to her said last will and testament, wherein she fully ratified and confirmed said last will and testament, except that she revoked the third item or clause thereof, and in lieu of the provision therein contained in favor of Mrs. Raura Sherwood, of Bridgeport, Connecticut, directed her executor to safely invest such portion of her estate as would yield $500 per annum, and pay the said $500 annually, in quarterly payments, to the said Mrs. Taura Sherwood during her natural life. And she also provided that such parts
The will and codicil were duly established in the Court of Probate for Richland County, in the State of South Carolina. The plaintiff qualified as the executor. All of the personal estate of the testatrix in the State of South Carolina was $825. Her real estate in the latter State was valued at about $20,000. Her debts amounted to about $30,000. The amount necessary to be invested to raise the annual sums to the said S. H. Hurd and the said Mrs. Laura Sherwood was about $22,000, and to pay the legacy of Miss Agnes C. Patterson was $5,000, making an aggregate of about $57,000. But the testatrix was entitled to the one-sixth part of the estate of her grand-father, the late P. T. Barnum, of Bridgeport, Connecticut, consisting of real and personal estate, in a part of which the widow of the late P. T. Barnum had a life estate. The estate of the late P. T. Barnum was located in three States — Connecticut, New York, and Kansas. Under the statute law of Kansas, whatever lands descended to the infant, Julia Clarke, through her mother, the testatrix, on her death vested in her father, the plaintiff. Under the statutes of New York, such share descended to the father for his life, with remainder to the infant defendant, Nancy B. Clarke. While in Connecticut such estate of the infant, Julia Clarke, would vest absolutely in the defendant, Nancy B. Clarke. While, to the contrary, if, under the provisions of the will of Mrs. Julia H. Clarke, deceased, her whole estate in the States of South Carolina, Connecticut, Kansas, and New York, the rest, residue, and remainder of testatrix’s estate, after the payment of debts and legacies, would devolve in equal portions upon the plaintiff, Henry P. Clarke, and the defendant, Nancy B. Clarke — for, of course, the State of South Carolina being
The Circuit Judge made his decree, which will be reported. The defendant appeals, also, from that decree. All
The exceptions above enumerated to the decree must be overruled.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed. 1