52 S.C. 88 | S.C. | 1898
The opinion of the Court was delivered by
An action to settle the estate of S. W. Kennedy, deceased, was pending between the plaintiffs and defendants (who are the respondents here), when there arose the necessity of making the defendants, appellants, parties in order to test the right of the estate of S. W. Kennedy to hold, as a part of said estate, certain rent liens, which had been assigned by James A. Howe and the defendant, Eoline Howe, to the said S. W. Kennedy, deceased, in her lifetime, to secure a debt to said S. W. Kennedy, owing by the said James A. Howe, for about $3,000. The rent
To this answer the plaintiffs replied as follows: 1. They admit the allegations contained in the first and second paragraphs of the said answer. 2. They deny the allegations set forth in the ninth paragraph of the answer. 3. They deny each and every other allegation in said answer contained except so much thereof as may be hereinafter admitted. 4. Further answering, the plaintiffs say: that Malvina F. Howe departed this life, as stated in said answer, leaving a last will and testament, which has been duly probated, and that the said will was drawn by W. A. Brunson, who at the time of the assignment of the leases in question was president of the defendant, the Bank of Florence, and that the said W. A. Brunson and S. W. Kennedy, who assigned the said leases to the said bank, and to whom they had been assigned by James A. and Foline Howe, were witnesses to the said will, and that the said S. W. Kennedy was named in the said will as an executor thereof, but never qualified as such. That the said Malvina F. Howe, with the exception of a small legacy to W. R. Howe, bequeathed and devised all her property, real and personal, to the plaintiff, James A. Howe, and to his wife, the defendant, Foline Howe, for and during the terms of their natural lives; that after the death of both, to their lawful children, absolutely. That the said will indicated and declared that the purposes of said bequest and devise were for the benefit of the said James A. and
By the carefully prepared decree of Judge Benet, he held that the assigned leases were legal and valid in the hands of S. W. Kennedy, as well as in the hands of the Bank of Florence as her assignee, and, as a consequence, that the defendants, Eoline Howe and Ethel and Malvina Howe, were not entitled to the relief prayqd for. Let the decree be reported. From this decree the defendants just named have appealed on the following grounds: “(1) That his Honor erred in holding that the will of Mrs. Malvina F. Howe created only a life estate for James and Eoline Howe. He should have held that it created a trust estate for the benefit of James A. and Eoline Howe and their children, the defendants, Ethel and Malvina Howe, during the life of the parents, and at their death, or remarriage of the mother, an estate in fee to the children. (2) His Honor erred in holding that the assignment of the rent leases was valid. He should have held that under the terms of the will of Mrs. Malvina F. Howe a trust was created, and under that trust the rents were reserved for the benefit of all the cestuis que trustents, and especially that same should be applied to the restoration of such property as should wear out, decay or die, and in no event could be used for the payment of the debts of James A. and Eoline Howe. (8) That his Honor erred in holding that the admitted fact that Sarah W. Ken
Both the life tenants having joined in the assignment, I see no reason, under the proofs, why her act should not stand. I think the decree ought to be affirmed, with the restrictions herein contained.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.