20 S.C. 237 | S.C. | 1883
Lead Opinion
The opinion of the court was delivered by
William C. Murray died many years ago, leaving a handsome property in this State. John Clarence Cochran, the plaintiff, was his executor, and in 1865,. filed a bill in Charleston for the partition and settlement of his-estate. James Ancrum Murray was one of the children of the testator, and before the estate was divided, married and died intestate, leaving in the Island of Jersey, in the kingdom of' Great Britain, a widow, Victoria Isabella Murray, and one child, an infant, William James Murray. John C. Cochran thereupon administered upon the estate of the intestate, James A. Murray, in South Carolina, and filed a supplemental bill, in which the-property of William C. Murray was ordered to be sold, and the share of the intestate, James A., was ascertained, of which his-widow was entitled to one-third, and the child, William James, to two-thirds. John Robert Davey was appointed tuteur or guardian of the infant in the Island of Jersey, where a guardian is not required to give bond and security for the faithful discharge of his trust, but it seems that the electors, who recommend the guardian, are, in some respects, responsible for the manner in which he discharges the trust. Henry Edward Young- and the said John Clarence Cochran were regularly appointed the guardians of said infant in this State, and as such gave bond, for the faithful discharge of their trust.
In 1873, Mrs. Murray, the widow of James A., married in<
In 1877 the said Victoria Isabella died in Jersey, having first executed a writing in the nature of a last will and testament, but having the attestation of only two witnesses (sufficient at the place of her domicile to dispose of personal property), whereby she undertook to execute the power reserved to her in the articles of marriage settlement, by appointing her one-third of the estate of her first husband, James A. Murray, to go to her brother, John Robert Davey, and George White, as testamentary executors, upon certain trusts for her only son, the said William James Murray, her husband, Fillans, who survived her, and her own family, the Daveys.
This paper was admitted to probate both in Jersey and in the State of South Carolina.
This action was instituted by John Clarence Cochran, as administrator with the will annexed of Mrs. Fillans, in this State, making all the claimants hereafter mentioned parties. The complaint states that the said administrator, having duly administered the estate, which is in his hands, invested in bonds, stocks, Ac., amounting to about $20,000, is ready and desirous of paying
The cause was referred to Master Porter, who reported that “ The court is authorized and bound to protect this trust fund against accident or abuse by requiring those who claim the possession, either as guardians or trustees, to give bond and security for the faithful discharge of their trusts.” Upon exceptions to this report, Judge Kershaw held that the interest of the minor, William James Murray, was contingent upon his attaining twenty-one years of age, and ordered the funds paid to the trustees in Jersey, upon their entering into bond, with approved security, to the clerk of the court for Charleston county, conditioned for the faithful discharge of their duties as such trustees.
All the parties appeal to this court. The South Carolina guardians from so much of the decree (1) “ as holds that the said Murray is now entitled to no part of this fund, whereas he has a
And the trustees appeal from so much of the decree as holds as follows: 1. “ That the said defendants should be required to give security before the trust funds are transferred and paid over to them, no such security having been required by the donor of the trust, and no charge of insolvency or unfitness being made or shown against the said trustee. 2. Because the Circuit judge erred in not holding that if the said defendants should give security, they should only give such sufficient security for the execution of the trust as should be required by any competent court of general equity jurisdiction in the Island- of Jersey or kingdom of Great Britain, or as should be sufficient in the place of their domicile.”
If these funds were now due and payable to the ward, William James Murray, there is little doubt that his general guardians would be entitled to receive them, although they had not been appointed such guardians with any reference to this particular fund. But the question goes back of that. The funds due the estate of James A. Murray, by his death, were divided into two parts — two-thirds of them belonged absolutely to the minor, William James Murray, as the only child of his father. There was no trust or limitation over upon this portion, and, as we understand it, no question is now made concerning it. The other one-third of the estate went, absolutely, under the statute of distributions, to Victoria Isabella, as widow, but before it was reduced into possession, she, being about to marry a second
The plaintiff instituted this action as administrator in South Carolina, with the will annexed, of Victoria Isabella Fillans, but it must be observed, in the first place, that the fund cannot now pass under the paper in the nature of a will executed by Mrs. Fillans and called her will. At the time of her death she was a married woman, and, by the law of her domicile, incompetent to make a general will; but, if she had been competent, she could not thereby dispose of property which she had previously settled. It is true she had the right to execute a power if the circumstances existed in which the right was given; but the articles of marriage settlement had assigned the property to trustees upon such trusts as carried the whole interest, except in the single case of all her children dying before they attained the age of twenty-one years, in which event alone she had the right to appoint to new uses. “ In case no child, being a son, shall attain such age, or, being a daughter, shall attain such age or marry, the trustees shall stahd possessed of the said property upon such trusts and for such purposes as the said Victoria Isabella Murray shall declare by her last will.”
There is one child still living, who may attain to the age of twenty-one years, and therefore her appointment to uses cannot now take effect, but the property falls under the provisions of the marriage settlement, which gives the legal estate to the trustees, who “shall stand possessed” of it under the trusts therein declared. In this view, it seems to us that the question whether the interest of William James Murray is vested or only contingent upon his attaining the age of twenty-one years, does not necessarily arise, for in either case the property cannot now be delivered to any guardian of the minor, but must be held by the trustees until he attains the age of twenty-one years, and then delivered to him as the only child of his mother; or, if he should not attain that age, then, as we suppose, be distributed according to the paper in the nature of a will executed by Mrs. Fillans, as in that case the event will have occurred in which she was authorized to appoint to uses.
In practice, our courts have relaxed what seems to have been the general rule against allowing such transfer, and, regarding themselves competent to do so, have ordered funds of infants under their control — that is to say, in the hands of executors or administrators — to be paid to guardians appointed and residing in other States. But in doing so the court takes every precaution to guard against abuse and loss to the infant, and for that purpose always requires a new appointment with bond and security in the jurisdiction, or at least a recognition of the foreign appointment upon proof here to be approved by the court of these things — First, the fact of a guardian having been regularly appointed according to the laws of the State in which the ward resides; secondly, the fitness of the guardian for the appointment ; and, thirdly, whether sufficient security has been given. Ex parte Smith, 1 Hill Ch. 140; Ex parte Heard, 2 Hill Ch. 54; Ex parte Copeland, Rice Ch. 69. Judge Story, in his Conflict of Laws, § 504a, thus states the rule: “No foreign guardian can, virtióte officii, exercise any right or powers or functions over the movable property of his ward which is situated in a different State or couhtry.from that in which he has obtained his letters of guardianship. But he must obtain new letters of guardianship from the local tribunals authorized to grant the same before he can exercise any rights or functions over the same,” &c.
This being clearly the law as to foreign guardians, is there any reason why less should be required of foreign trustees appointed by the donor in her life-time without requiring
As Chancellor Dunkin said, in Ex parte Copeland, supra: “In the case of Morrison v. Toomer, decided recently by the Circuit Court in Charleston,®it is said by the chancellor, ‘the general doctrine and course of this court (equity) is well established ; that it will not permit trust property to be removed out of the jurisdiction; and the trustee, who should knowingly and willingly permit this, would render himself liable to those who might be injured by his misconduct. * * * The court does sometimes permit trust property to be carried out of the jurisdiction, taking every possible precaution for the security of the cestui que trust. * * * Regarding the recent decisions on this subject as in some degree an innovation upon the practice of the court, it is not deemed expedient to extend them to cases where the reason does not manifestly exist. The application is always addressed to the sound discretion of the court. The presumption should always be against the removal of funds beyond the jurisdiction of the court; where the expediency or necessity is made clearly to appear, permission should be granted only on such terms as the nature of the case may require, or as experience may suggest to be necessary.’ ” .
As we understand it, the practice of requiring security in such cases does not depend upon the domicile of the cestui que trust, or the manner in which his foreign guardian or trustee was appointed, but upon the view that the property being within the jurisdiction, the court is in some sense responsible for its safety, and will, therefore, not yield that control, except upon such
But whilst the property is here, this is an English trust, to be executed by English trustees, and in behalf of persons who are resident in England, and it may be that it will be inconvenient for foreigners to give bond and security in this State for a sum so large, and particularly as it is a trust fund to be held probably for a number of years. These considerations have induced us to consider whether the purpose in view may not be accomplished by requiring that the trustees should give security in Jersey for the faithful administration of the trust. We have no right to make such an order. All that wé can do is to control our own action'according to the practice of this court and the well-established principles of equity. The Circuit decree is so far modified as to permit the trust fund to be paid over to 'the trustees whenever it shall be made To appear to the satisfaction of the Circuit Court that the trustees have given to the proper officers or court in the Island of Jersey good and sufficient security for the faithful administration of the trust declared in the deed of marriage settlement aforesaid. And in case such proof, to the satisfaction of the Circuit Court, is not offered, then that the trust funds be paid over only upon bond and security given in the county of Charleston as required by the Circuit decree.
The judgment of this court is that the judgment of the Circuit Court be modified according to the conclusions herein announced, and in all other respects be affirmed.
Concurrence Opinion
I concur in this opinion of the majority, except so far as it requires the trustees to give bond
Judgment modified.