McFall v. Sullivan

17 S.C. 504 | S.C. | 1883

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

Dr. Jno. C. Sullivan, late of Greenville County, died in 1861, leaving a last will and testament, in which, after providing for the payment of his debts, and stating that he had already given all of his children something, excejit his unmarried daughter Clarissa, afterwards Mrs. Cannon, he then proceeds to give her certain property consisting of slaves and a tract of land containing 381 acres, and some other personal property, which in all he valued at $7500, upon certain terms and conditions. This bequest was referred to in the will as if the testator intended it as a gift in frosenU. He then enumerates the property previously given off to his other children, ranging from $4800 to $5000 to each, closing as to each with these words : “ which can be seen by reference to my book of charges against my children.”

. After some other unimportant directions, he leaves all the balance to his wife for life, directing that upon her death his property should be appraised in lots and taken by his children, the children of his two deceased daughters, Sarah and Temperance, each to draw a full share among them; but if they could not agree on a division, his executors were empowered to sell all or any portion for that purpose, expressing his wish that upon a final settlement that each legatee should get the same, further directing “ that if in the division it should so happen that one gets more than another, that he should have one year without interest to refund, except Clarissa, to whom he gave $500 more than the rest.”

His son, Jno. I). Sullivan, was appointed executor, who, after partially administering the estate, died, and William E. Sullivan, a son of John D., administered with the will annexed, de bonis non. W. A. McDaniel administered upon the estate of John D. The estate of Dr. Sullivan not having been settled, this proceeding was instituted for an accounting between the estate of the former executor, John D. Sullivan, and that of Dr. Sullivan, for the sale of the real estate of Dr. Sullivan, and for final settlement according to the rights of the parties.

The only serious question in the case is as to the liability of the children and especially of Mrs. Cannon to account for the property received by them as advancements. The cáse was referred to a referee to take the testimony, who reported as to Mrs. Cannon, that she went into the possession of the property bequeathed to her in the will previous to the death of her father. He also reported the amounts received by the others. The presiding Judge decreed that the settlement should be made without regard to the previous gifts, and that this should apply to Clarissa as well as to all the others, and this, too, whether Clarissa took her part under the will at the death of her father, or as a gift previous to his death. He held that there was to be no accounting. The appeal raises the question whether there was error in this ruling.

It was said in the case of McDougald v. King, Bail. Eq. 154, that the law on the subject of advancements applies onle to cases of intestacy. This is without limitation, except where the children have been advanced after the making of the will. Then it may be made a question whether such advancements are not to be taken in satisfaction of legacies given in the will, and especially will this be done if the advanced party consents to bring in his advancements. The doctrine of accounting for advancements as a legal principle comes from the statute, Gen. Stat. 440, and it applies exclusively to cases of intestacy. Allen v. Allen, 13 S. C. 513. But. still it has never been denied that a testator might regulate the disposition of his property as he deemed best, so that in so doing he violated no established principle of law. Within this limit he can make his own law as to his own property, and the courts will respect and enforce it. In Allen v. Allen, supra, Mr. Justice Mel ver said : “ The doctrine of advancements applies only to cases of intestacy, or when directed by the will.”

Dr. Sullivan died testate, so that the question involved here must be determined upon the construction of his will. Did he intend that his children should account ? and does that intent appear? There is certainly nothing in the will which directs such accounting in express terms, and if he had intended this, it is somewhat singular that the testator did not so declare in unmistakable language. He was evidently a man of more than ordinary intelligence. He had a large estate to dispose of, and’ no doubt knew full well how to express intelligently his purposes in reference thereto, and yet the will is silent as to any positive direction on that subject. This is a significant fact, and should have influence in endeavoring to reach the intent of the testator, which, as is often said, is the pole-star in the construction of wills. Can such intent be fairly inferred from the whole will, or from any portion of it ?

' The only portions- of the will that refer to the division of his property among the children are the last two clauses. In the first of these two, after having given the balance of his property to his wife, he directs that, should his wife survive him, at her death it is his wish that his property be appraised in lots and be taken by his .children. What property did he refer to in this clause ? Evidently, that taken by his wife for life. He had none other undisposed of. After enumerating in his will the portions given off to all of his children, including that given to Clarissa, he then gave the entire balance of his estate to his wife during her life, and proceeds to direct that at her death his property should be appraised in lots, for his children.

Could any other property have been appraised and divided into lots except that in which he had reserved the power to dispose of, after the death of his wife ? Could the executors, with the view to equalize these lots, have required the advanced children to bring into hoichjpot their advancements? They certainly had no such power. The will was their guide and warrant of authority, and this gave them power only over such property as he might die possessed of with a life estate in his wife. This they were directed to appraise into lots for division, and having performed this, their powers and duties ended so far as this clause is concerned.

In the last clause the testator contemplated the possibility that the children might not agree on a division at the death of his wife. In such case he empowered his executor to sell all or any portion, either personal or real, to that end, expressing a desire that upon “ final settlement each legatee shall get the same; ” and in the division, if it should so happen that one legatee gets more than another, that he shall have one year without interest to refund it in, “ except as to Clarissa, to whom he gave $500 more than the rest.”

In these two clauses the testator seems to refer entirely to the property left in the hands of his wife for life. This was to be divided equally, either by appraisement and allotment of the property itself as a whole, if that could be done, otherwise by sale in whole or in part, as the necessities of the case might require. "W e see nothing in the language of either clause, or in the general scheme, which either by necessary implication or reasonable inference leads us to believe that the testator intended to embrace in this last division any of the property previously given off to any of his children.

The inequality of the previous advancements cannot raise such an inference. Testators have the right to dispose of their property as they may see fit, and while it is usual for parents to give each child an equal share, yet there is no law which requires this. Nor when a departure is made can any one demand the reason.' No one but the parent himself knows the different advantages which have been received by his children respectively, the different services rendered by each, or the future necessities to be provided for. The law, therefore, wisely leaves all this to him, and to that parental attachment which is universal, and which is the safest guaranty to parental justice. " The law seeks only to know the intent. "When that is reached by the proper application of the legitimate canons of construction, whatever this may be, if not inconsistent with well-established principles, the law will protect and enforce.

Seeing nothing in the will either express or necessarily implied which authorizes the construction that the testator intended that his children should account, and this being a case of testacy, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.