24 S.C. Eq. 201 | S.C. Ct. App. | 1851
delivered the opinion of the Court.
Hannah Swinton, the testatrix, died in 1843. Her will, dated February 27, 1832, contains the following clauses : “ I give and bequeath twelve shares of the dividends of my five per cent, stock, of the State of South Carolina, unto my executors, in trust always nevertheless, that they shall pay over the interest on said stock to my slave named Minda, for and during the time of her natural life, quarterly, as they shall receive the same in equal shares; and at the death of my said slave Minda, the said five per cent, stock and dividends of the said State, shall go to the Sabbath School of the Circular Church, No. one; and I charge my executors to fulfil the foregoing bequest in favor of the said Sabbath School, and if it should not be incorporated, then, I do hereby make them trustees, if necessary, for that purpose ; and if the said Sabbath School should not exist at the time when the said legacy shall accrue, then, the said stock and dividends shall go to the Circular Church in Charleston, forever.” “ I desire that all the property, not specified in this my will, whatsoever, howsoever, and wheresoever it may be found, which I now hold, or hereafter I may hold, shall go to assist in educating the children of my deceased brother, James Swinton, until the youngest is twenty years old, then I desire that it shall go to 'my infant nephew, Hugh Ralph Swinton, to him and his heirs forever ; but in the case,” &c. The context, by the minute specification of her estate, and the careful mention of all persons, whom she supposed to have any claim upon her bounty, manifests the purpose of testatrix to dispose of her whole estate, and •not, as to any part of it, to die intestate.
The plaintiff states in his bill, that he is the youngest child of James Swinton, and is over the age when the residue was appointed to vest in him ; and he claims, that the legacy in trust for the slave Minda, is null and void by the 4th section of the Act of 1841 (11' Stat. 154,) and falls into the residue, to which he is entitled. The sum in controversy is small, consisting of the dividends of $1200, in the 5 per cents, of State stock, for the life-time of Minda, from the death of the testatrix, or the attainment of twenty years by the plaintiff, whichever was the posterior event.
The plaintiff in his bill made no parties defendants except the executors, and they, in their answer, operating to this extent as a demurrer, objected, that all the parties in interest were not parties to the suit. At February Term, 1850, Chancellor Dargan made the following order: “ On hearing the bill and answer in this cause, it is ordered, that the complainant have leave to amend his bill, by adding new parties thereto, as follows, to wit: the corporation of the Circular Church, the next of kin of the testatrix, Hannah Swinton, and Sabbath School No. 1, of the Circular Church, if the same should be incorporated, and if not incorporated, the said Sabbath School shall be represented by the parties defendants before the Court, as the trustees of the School, “being declared such by the will, in the event that the said school shall not be incorporated.” The plaintiff finding it inconvenient to comply with this order, as the next of kin were numerous and widely dispersed, brought the matter before Chancellor Dunkin, at June term, 1850, and moved to rescind so much of the former order as required the next of kin of testatrix to be made parties : and this motion was refused by the Chancellor.
The appeal is from this order and this refusal, on the ground, that the next of kin of testatrix are not necessary parties in this
Whether, in this case, the next of kin of testatrix have an interest in the object of the suit, depends upon the subordinate questions, whether the plaintiff is constituted, by the terms of the will, general legatee of the residue ; and whether the legacy in trust for a slave falls into the residue.
That a gift of the residue may have a limited operation, is unquestionable, where the words of the will and the manifest intention of the testator require such construction. Even general words sufficiently broad to cover the whole, may be confined in their operation by connection with other parts of the will. In Attorney General vs. Johnstone, (Amb. 577,) Lord Camden held that, where testator had expressed doubt if there would be any residue, and then mentioned it as a small remainder of about £100,
In the first three sections of the Act of 1841, gifts and trusts, providing or intended for the emancipation of slaves, are declared not only to be void, but to enure to the benefit of the next of kin ; but the 4th section, which is the only one that speaks of gifts to slaves, says nothing about the next of kin: and. while, in terms too plain for disputed construction, it declares every bequest in trust for the benefit of any slave to be void, it leaves the consequences to be determined by the general law. If it be true that void legacies fall into the residue, the plaintiff is entitled to the bequest in trust for Minda ; and this general proposition is clearly settled by the cases. Lord Hardwick says, in Durour vs. Motteaux, (1 Ves. sen. 321,) turning upon the mortmain Act; “ a will is made in which several legacies, and the residue of the personal estate, are given away; one of the personal legacies is void by law ; the Court cannot say for that reason, contrary to the express will, that testator intended to die intestate: for giving the residue over includes every thing, let it fall in by reason of that legacy’s being void, or lapsing, by dying in the life of the testator.” See Shanley vs. Baker, (4 Ves. 732.) In Kennell vs. Abbott, (4 Ves. 802,) a legacy given by a woman to her supposed husband, who was not her husband, and therefore void, was decreed to the residuary legatee. In Leake vs. Robinson, where the legacy was void for the remoteness of the limitation, Sir Wm. Grant says: “ It must be a very peculiar case in which there can be at once a residuary clause and a partial intestacy, unless some part of the residue be ill-given. It is immaterial how it happens, that any part of the property is un-disposed of, whether by the death of a legatee, or by the remoteness and consequent illegality of the bequest. Either way it is a residue : i. e. something upon which no other provision of the
It does not seem to us, that the next of kin of Hannah Swin-ton have any such interest, as requires them to be parties to this suit; and it is ordered and decreed that so much of the order of February, 1850, as requires them to be made parties, be rescinded.
Motion granted.