38 S.C. 50 | S.C. | 1892
The opinion of the court was delivered by
The only questions presented to this court in this cause, are those raised in the grounds of appeal exhibited by five of the defendants, namely, Mrs. Elizabeth H. Brown, Mrs. Agues B. Brown, Mrs. S. A. Chaffin, Mrs. Yinity C. Lipscomb, and M. C. Lipscomb, to so much of the decree rendered by his honor, Judge Hudson, herein, on the 6th day of November, 1891, as is covered by appellants’ exceptions alleging error therein.
The grounds of appeal presented by the defendants, M. C. Lipscomb and Yinity C. Lipscomb, are: 1. That his honor, Judge Hudson, erred in not holding, that when C. B. Hammett endorsed the note of M. C. Lipscomb at the bank (the National Bank of Spartanburg, S. C.), he intended to make an advancement to his daughter, Yinity 0. Lipscomb, and that he never, at any time afterwards, intended that M. C. Lipscomb should
The grounds of appeal of Mrs. E. H. Brown were as follows: That his honor, Judge Hudson, erred: 1. In not holding that all of the property belonging to C. B. Hammett at the time of his death, including the property devised and willed to his widow, should be exhausted before requiring any of his children or sons-in-law to contribute anything towards the payment of his debts. 2. In not holding that the property and money given to this defendant was an advancement, and that the executors and creditors had no right to call upon her to refund to the estate any of the said advancement. 3. In not holding, at least, that if this defendant refunded any of said property or money received by her, that C. B. Hammett and W. T. Hammett should also account for the money or the lands advanced or loaned to them, and for the notes and mortgages given by them to C. B. Hammett, deceased. 4. In not holding that, at least, this defendant, Elizabeth H. Brown, -should only pay back to the estate her share of the deficiency pro rata among all the children, according to the amount received by them. 5. In not finding that this defendant was entitled to the homestead
The exceptions presented by Mrs. Agnes Brown and Mrs. Chaffin were: 1. That his honor erred in holding that the land advanced to them by their father, and conveyed by him to them by deed, should be subjected to the payment of the debts of the said C. B. Hammett. 2. That his honor erred in not holding that the land devised to Elizabeth Hammett should be exhausted before the land advanced to these defendants. 3. That his honor erred in not sustaining the master’s report, in so far as it relates to these defendants. 4. That his honor erred in not ruling and holding that each of these defendants are entitled to a homestead exemption.
We will now consider the matters involved in these several appeals, but not in the order suggested by appellants.
How should this will be construed? For a proper understanding of this question, it will be necessary to state substantially, without copying, what we understand to be the provisions of the will which the court is called upon to con
So that, as we have said above, the practical inquiry is whether the testator has undertaken to subject to the payment of his debts any property which, during his lifetime, had passed beyond his possession or control, by either sale or gift to his children. Now it seems to us clear that the evidence of indebtedness which he held against his children or sons-in-law up to the time of his death, whether in the form of notes or accountable receipts, had not passed beyond his control, and, therefore, he had the right to subject the same to the payment of his debts; and in the contingency that has arisen, he has expressed his intention to so subject them. This, as we understand it, is substantially the view taken by the Circuit Judge, and, therefore, we think his judgment should be affirmed,
It is the judgment of this court, that the judgment of the Circuit Court be affirmed, and the cause is remanded to the
■ In this case a petition for rehearing was filed by S. A. Chaffin, upon which the following order was endorsed, December 20, 1892,
A petition for rehearing was also filed by M. C. Lipscomb and Yinity G. Lipscomb, upon which the following order was endorsed, December 20, 1892,
We have carefully considered this petition, and finding that no material fact or principle of law has either been overlooked or disregarded, there is no ground for a rehearing. It is, therefore, ordered, that the petition be dismissed, and that the stay of the remittitur heretofore granted be revoked.
Hpon this petition, counsel moved for and obtained a temporary stay of remittitur. Thereafter, on December 20, 1892, the following order was endorsed on this petition
This petition does not purport to be a petition for a rehearing," but simply for the stay of the remittitur, upon the ground that evidence of an important character has
The “Case” contains no fuller statement. — Reporter.