37 S.C. 537 | S.C. | 1892
Lead Opinion
The opinion of the court was delivered by
Benjamin F. Briggs, while a citizen of this State, having a living wife and two children, caused a last will and testament to be prepared for him, by the terms of which he left $50 to each one of his children; provided, that one-fourth part of his whole estate, after payment of debts,
It is not denied that B. F. Briggs died survived by his widow and two children, and that for a number of years before his death he had sustained unlawful relations with Louisa C. Massey, and that she bore him three children. Under the laws of this State, he was allowed to give by will, or otherwise, not more than one-fourth of his estate to Louisa C. Massey and her children. If, however, he attempted to provide a larger portion of his estate than one-fourth for them, his wife or children could defeat such increased gifts or devises. It is not claimed here that such illicit offspring are given directly more than such one-fourth of his estate, but it is strenuously urged that the bequest to James L. Clarke is upon a secret trust for such illegitimate children. Here is the contention. Judge Fraser in his decree finds it as a fact that the testator’s purpose was that Louisa C. Massey and her three illegitimate children should have the use and benefit of the gift to James L. Clarke, but he declines to enforce any trust as to such gift, as against James L. Clarke, upon the ground that he is not satisfied from the testimony before him that James L. Clarke, during the lifetime of the testator, had ever been informed of the testator’s intention to create such a trust. The several grounds of appeal urge that the Circuit Judge was in error.
It is suggested that sections 1785 and 1866 of the General
In the case of Taylor v. McRa, supra, it will be discovered that the court construed the words of the will on its face—there were no circumstances outside of the will relied upon to create any trust in the bequest to Taylor—and the court held: “It is not pretended that there is any secret trust on the part of the plaintiff for the illegitimate children, and it is conceded that the gift to the plaintiff makes him the absolute proprietor of the estate, unless the terms of the will create an express trust. The course of courts of equity, of late years, has been against the conversion of legatees into trustees, by vague expressions of wishes or recommendations in the disposition of the estate (Sale v. Moore, 1 Sim., 534; Meredith v. Heneage, Ibid., 542; Wright v. Atkyns, 1 Tur. & Russ., 143); and here there is nothing more than a commendation of his children by the testator to the kindness and protection of his executor, without refer
No doubt exists that the legislature intended by its provisions to protect the public interests, but it will be observed that any property recovered under its mandates should vest as the law would have vested it if the donor or testator had not attempted to evade the law. In the Circuit decree of Chancellor Ward-law, when he comes to discuss the effect of the sections of the act of 1841, upon sales and voluntary donations of slave property on trusts declared unlawful by it's provisions, he points out very suggestively, what may prove an important feature of the law in the proper decision of the case at bar. He says: “I suppose a sate [italics ours], on the unlawful trusts mentioned in the second and third sections of the act of 1841, ¿>articularly the latter section, is no less liable to be declared void than a voluntary donation ; although there is more influence in a mere gift than a sale in aiding the implication of the trust itself [italics ours]. It is not clear, when the donee is a mere volunteer, that it is not enough to bring the gift within the scope of the act, that the donor certainly intends an unlawful trust [italics ours], although the donee may not he fully cognizant of it. If the trust be not executed, the donor is defrauded; and whether it be or not, there is an attempt to defeat the policy declared by the legislature by the enactment. It is difficult to convert one into a trustee without his consent, and the trust under the act must always be in the donee, and merely the creation, or attempt at creation, of the trust on the part of the donor; still a donee, or other person, should not be allowed to take advantage from the fraud of another, and one may naturally suspect fraud, or purpose to create a trust, when unreasonable and extravagant bounty is conferred on him by a stranger.”
We should be candid, and state that, notwithstanding this reasoning on the part of the chancellor, his conclusion of this
In the case at bar, if the legatee Clarke was not apprised of the illegal purpose of the testator, would it not be a fraud upon such testator if this legatee claimed this property as his own absolutely! Being a voluntary stranger, no consideration moved the testator to bestow this gift upon him. It is impossible for Clarke, under the facts developed at this trial, to rest under any other conviction than that Briggs, the testator, coupled with the gift an obligation to use it for the benefit of his illegitimate children, for whom he had already in his will provided to the limit allowed by law. If he should disregard this palpable intention of his benefactor, he would be lost to all shame. If he should regard it and execute it, he thus contravenes the positive laws of his country forbidding such a course. Under our view of the law, he shall not be required to elect either course. We feel it our duty to adjudge, it having been established in this case that Briggs, the testator, intended the gift to Clarke to be for his illegitimate children, that all the estate that was given to James L. Clarke under the will of Briggs shall be paid to the widow and two children of the testator by the executor, J. F. Wallace. Having reached the foregoing conclusion, it is unnecessary for us to discuss any other propositions of law or fact herein .involved.
It is the judgment of this court, that the judgment of the Circuit Court be reversed and that the action be remanded to the Circuit Court, with directions to enforce by suitable proceedings the conclusions herein announced.
Dissenting Opinion
I dissent, and am willing to rest my conclusion upon the reasoning employed by the Circuit Judge.