61 S.E. 245 | S.C. | 1908
April 20, 1908. The opinion of the Court was delivered by In 1862 William Johnson Stevenson, of Abbeville County, in this State, departed this life intestate; by his last will, after providing for the payment of his debts, he devised and bequeathed as follows:
"That is to say, first, I give to my mother, Rebecca Stevenson, the tract of land on which I now live, containing 484 acres, more or less, bounded by lands of J.L. Ellis. J.F. Simpson, B.L. Latimer, and others, together with all my personal property, viz.: One negro boy, Alfus, about six years old; four horses; my interest in the stock of hogs on the plantation; also my interest in the crop of corn, cotton and wheat, household furniture, plantation tools, including two wagons; also my notes and accounts for her own proper use and benefit, during her natural life, allowing my two unmarried sisters, Mary Jane and Isabella Aveline Stevenson, to remain on the plantation and share the benefits of my said estate with my said mother during the lifetime of my said mother, or until they marry; my said mother, together with my two single sisters before mentioned, to have the sole use and benefit of my estate, real and personal, and my said mother to have the absolute and entire disposal of my estate, by will or otherwise, during her lifetime; and should my said mother decease without making any disposition of my estate, my will is that my two before mentioned sisters remain on the plantation and have the sole use and benefit of my estate, real and personal, during their natural lives, or until they marry. Should one of my sisters decease or marry, the survivor to have the benefit of my estate during her lifetime or until she marries; my aforesaid mother, *103 however, having the right to dispose of my estate during her lifetime as she may think proper; and should my said mother make no disposition of my estate during her lifetime, then at the decease or marriage of my two said sisters, my executors, hereinafter named, will proceed to sell my whole estate, real and personal, and divide equally, share and share alike, between all of my living sisters, or the lawful bodily heirs of any who may not be living."
Rebecca Stevenson, the mother of testator, departed this life not long after the said testator, the two sisters who were life tenants, to wit: Mary Jane and Isabella Aveline Stevenson, remaining in possession during their lives, and departed this life — one in 189 and the other in June, 1906.
The testator had four sisters living at his death, but one of testator's sisters, however, died before him, leaving as her heirs at law two sons, James H. Simpson and John Simpson, Jr. Both the executors of the will died years ago; and the two plaintiffs herein, John A. Hagan and John W.J. Simpson, were appointed administrators, with the will annexed, of said testator; his real estate of 484 acres, and his small personal estate, is in the hands of said plaintiffs.
Differences have arisen between parties claiming to be heirs at law of testator as to the shares owned by the parties under the will; hence the plaintiffs, before exercising the power of sale, come into court and make all parties who claimed any interest defendants, and ask the Court to adjudge who were entitled, and to what shares, respectively.
All were adults except one, Eguene Simpson, who appears by his guardian ad litem.
The case came on for a hearing before his Honor R.O. Purdy in March, 1907, and was heard upon a certain agreed statement of facts, together with certain depositions taken in the State of Virginia in regard to the inter-marriage between Washington J. Hanks and Margaret Stevenson and also a copy of the laws of the State of Virginia regulating divorce from 1842 to 1870. *104
Judge Purdy rendered his decree in August, 1907, and all parties appealed therefrom. The reporter will report the exceptions.
The three questions which were raised at the hearing before the circuit judge and are now brought before us by appeal are, first, the legitimacy of Rebecca J. Hanks; second, the right of the defendants claiming to be heirs at law of the testator's deceased sister, Mrs. Simpson; third, should the distribution of the property be made per stirpes or percapita?
The circuit judge held that although a previous marriage existed between Washington J. Hanks and Mary Morris, yet they were duly divorced in the court of equity of Carroll County, in the State of Virginia, about 1855, and that thereafter, to wit: 1857 or 1858, the said Washington J. Hanks married Margaret Stevenson, who lived for many years in Carroll County, State of Virginia, until Washington J. Hanks died, in 1885, leaving Rebecca J. Hanks as the only issue of that marriage. The circuit judge, although no record evidence of the divorce of Washington J. Hanks from Mary was produced, owing to the destruction of the records by fire of the Circuit Court of Carroll County, Virginia, during the closing year of the war 1865, by the Federal soldiers, received the evidence of six witnesses who detailed with great circumstantiality the lives of Washington J. Hanks, Mary Morris and Margaret Stevenson Hanks during the many years in which they resided in Carroll County, Virginia. Every witness testified that it was understood and acted upon that Washington J. Hanks and Mary were divorced, including among those witnesses a brother of Mary Morris, and it was also testified that the parties lived within six miles of each other; one of these witnesses was a man who had been clerk of court for about forty years. Granted now that there is a difficulty in defendant Hanks' way as one of the heirs at law, yet if a *105 record had been destroyed testimony in relation thereto may be given; how otherwise could the right be made to appear. The highest character for uprightness was accorded these parties. Some question was raised as to the circuit judge having allowed the laws of the State of Virginia in regard to divorce to be introduced in testimony. In this matter we think the circuit judge presiding at the trial was right; no damage could justly arise therefrom and we unhesitatingly enforce the action of the judge in the admission of such testimony.
We are satisfied that the circuit judge properly admitted Rebecca J. Hanks to appear as an heir at law. All the exceptions directed against her admission are overruled.
Second, we are satisfied with the conclusion of the circuit judge in regard to this question, whether the sister of the testator died, she was represented by two heirs at law, and we hold that when the testator said: "that after the decease or marriage of my two said sisters, my executors hereinafter named, will proceed to sell my whole estate, real and personal, and divide equally, share and share alike, between all of my living sisters, or the lawful bodily heirs of any who may not be living," he meant that the lawful bodily heirs should be admitted along with any sisters who might be then living, and the testator carefully guarded amongst whom the division was to be made by requiring that the estate should be divided equally, share and share alike.
Third, we agree with the circuit judge in the conclusion that he reached here when he said: "I hold that the gift to lawful bodily heirs of any who may not be living, referring to the sisters mentioned above, is an original and not a substitutional gift. Therefore the parties who answer the description of lawful bodily heirs must take per capita, and notper stirpes." Duke v. Faulk,
The testator made each party interested to take as an original gift, and not as a substitutional gift. *106
Under these circumstances we uphold the scheme embodied in the decree of the circuit judge for a distribution of the whole estate.
All the exceptions, therefore, which in any manner contravene Judge Purdy's decree are set aside.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.
