Opinion
14277
April 8, 1936.
Before GASTON, J., Lancaster, August, 1935. Affirmed.
Suit by Joseph P. Evans against J. Allen Adams, individually and as executor of the will of W.J. Evans, deceased, and others. From an adverse judgment, the plaintiff appeals.
The order of Judge Gaston, referred to in the opinion, follows:
I heard this case at Chester on August 2, 1935. Counsel for all parties argued the issues most ably and thoroughly. The complaint alleges the death of W.J. Evans on May 14, 1935. He left a will, dated April 3, 1935, and therein disposed of his property as follows:
"Item II. I will, devise, and bequeath to my father, Joseph P. Evans, during his natural life, all the real and personal property which I may have at the time of my death of whatever nature or kind and at the death of my father, Joseph P. Evans, I direct that my estate be disposed of as follows:
"Item III. I give, devise, and bequeath to my friend, Hollis L. Hance, whatever indebtedness he may owe me by note or otherwise, and in addition to the foregiveness of the said indebtedness, I will, devise, and bequeath unto the said Hollis L. Hance, the sum of One Hundred and No/100 ($100.00) Dollars, in cash.
"Item IV. I will, devise, and bequeath to Alma Evans, daughter of John Evans of Sydney, Florida, the sum of One Hundred and No/100 ($100.00) Dollars, in cash, the same to be deposited in a National Bank and to be held by said bank in trust at interest until the said Alma Evans reaches the age of twenty-one (21) years.
"Item V. I will, devise and bequeath to my cousin, J. Allen Adams, of Lancaster, S.C. the sum of Five Hundred and No/100 ($500.00) Dollars, in cash.
"Item VI. All the rest and residue of my real and personal estate that may remain after the payment of the legacies above mentioned following the death of my father, Joseph P. Evans, I will, devise and bequeath to the Lancaster Associate Reformed Presbyterian Church, Lancaster, S.C.
"Item VII. I nominate, constitute, and appoint my cousin, J. Allen Adams, of Lancaster, S.C. as executor of this, my last will and testament, and I authorize and direct him to sell my real estate consisting of a tract of land known as the John D. Adams place — lying north of Gills Creek and adjoining lands of N.B. Cousar, Mrs. Maude Adams, and others, containing one hundred and fifty-five and one-half (155 1/2) acres, more or less, and also my house and lot in the Town of Lancaster known as my home place, on West Meeting Street, adjoining lands of A.B. Ferguson, Jr., and Mrs. Ray E. Polliakoff and others, and I give to the said executor full power and authority to execute the necessary deeds of conveyance in connection with sales of said real estate, and for the purpose of paying the bequests above mentioned and in the order named, said sales shall not be made, however, during the lifetime of my father, Joseph P. Evans."
The complaint further sets forth that the plaintiff under the said will is entitled to all of the personal property of the testator, as the absolute owner of the same, after the payment of the debts of the estate. The complaint prays that the Court shall construe the will, determine the rights of the parties, and allow plaintiff's attorneys a reasonable fee. An answer was filed by the executor and J.U. Bell, as treasurer of the Lancaster A.R.P. Church. These defendants filed the joint answer by their attorneys. They alleged that the plaintiff has only a life estate in the personal property and the right to the income and use of the same for the term of his natural life; and that under the will the personal property should be held by the executor and the income paid to the life tenant. The answer also claims that the legal title to the personal property vests in the executor until his discharge. The personal assets are listed in the answer as follows:
Cash ..................................... $2,400.00 Federal Farm Mortgage Bonds .............. 900.00 Postal Savings Deposits .................. 400.00 Notes and accounts, estimated ............ 400.00 Furniture and other items, appraised at .. 200.00 _______ Total ................................ $4,300.00 The answer further alleges that the real estate in which the plaintiff has a life interest is unencumbered and the income thereon is about $400.00 per year; also that the plaintiff is a widower about 83 years of age and very feeble and unable to handle his own affairs; that there is danger of loss of the corpus of the personal property if delivered to him; and that the defendants should be indemnified against loss by a surety bond, if the Court determines that the plaintiff is entitled to the possession of the personal property.
The plaintiff contends that the will bequeaths all of the personal property to him as the absolute owner on the grounds: (1) That a limitation of personal property for life with remainder over creates a fee or absolute ownership in the first taker under the law of this State; (2) that the will does not expressly create a life estate to be kept separate and intact and therefore fails to establish a life estate; (3) that the intention of the testator shows his purpose to be that of giving the personal property to his father absolutely and only to limit by will the title to the real estate; (4) that the other legacies are payable out of the proceeds of sale of the real estate and that only the rest of the proceeds of sale thereof are devised in remainder.
I am satisfied that the will creates a life estate only in the personal property for the benefit of the testator's father, who is undoubtedly a very aged man and for whom the testator has made ample and generous provisions as the first object of his solicitude. After the death of the father, all the property, real and personal, is to be disposed of under the terms of the will by the payment of the specific legacies in the order named, and the rest and residue of both real and personal property is devised and bequeathed to the Lancaster A.R.P. Church of Lancaster, S.C. It is the duty of the executor to sell the real estate and to convey the same for the purpose of paying these legacies, "said sales shall not be made, however, during the lifetime of my father, Joseph P. Evans." There is no ambiguity in the wording of the will; it is clearly stated and well expressed and leaves no room for doubt as to its meaning.
The law is now well settled that an estate for life in personal property may be created by will with remainder over. This has been recently decided by the Supreme Court in a masterful opinion by Mr. Justice Fishburne in the case of Lilla L. Long v. Eva Lea et al., 177 S.C. 231, 181 S.E., 6, 101 A.L.R., 266, filed August 7, 1935; this opinion was rendered after the argument was had before me. The Supreme Court in this case has also settled the law in regard to the execution by the life tenant of a bond to secure the remaindermen in the personal assets. The Supreme Court states that it has been many years since the Court has had occasion to pass upon these issues. There are no recent decisions. We must look to adjudications of an earlier date. I have been unable to find any recent decisions in this State and the attorneys were unable to cite any. So that it is most proper that this case was instituted by the plaintiff in order to adjudicate the rights of the parties; especially is this true under the circumstances surrounding the parties. The life tenant is a very aged man and it may be well assumed that importance of settling these difficulties in his lifetime made it necessary to act promptly and with dispatch. The attorneys have shown commendable zeal and diligence in bringing the matter promptly into Court for the purpose of settling the important questions involved. There is no doubt that life estates in personal property have been frequently created by will and have been uniformly recognized and enforced.
The Courts of South Carolina for more than 100 years have held that a life estate can be created in personal property. One of the earliest cases is that of Logan v. Ladson's Ex'r, reported in 1 Desaus., 271. Quoting from the syllabus, "A bequest to a person and if he should die without issue living at his death, then a limitation over to another person, the limitation over is good." The Court stated that numerous adjudications already have been made on the same point in this Court and the Court of Chancery in England. Referring to the life estate in the personal property and to the estate in remainder, the Court in that case used this significant language: "All the candles are lighted and are consuming together."
Also in the case of De Treville v. Ellis, Bailey, Eq., 35, 37, 21 Am. Dec., 518, which case was decided at Charleston in the year 1827, a devise over after the life estate was good both as to real estate and personal property, affirming the doctrine laid down in Keating v. Reynolds, 1 Bay, 80. In this case it is stated that the Court will construe words, such as survivor, to support the construction that the intention of the testator was to limit the estate over after the death of the first taker.
It is now well settled that life estates may be created in money as well as in other personal property, 21 C.J., 1039, citing Patterson v. Devlin, McMul., Eq., 459, in which the Court holds that a tenant for life is entitled to the use of, or interest of money, only and must account to the remaindermen for the principal, etc.
These old cases have been followed by the Court and cited in various cases involving the construction of wills and deeds. For example, the last case of Gist v. Craig, 142 S.C. 407, 141 S.E., 26, 27, which was tried at Union, S.C. involved the will of Dr. L.S. Douglas, late of Chester County, S.C. In this will the following language is used conveying a life estate to his widow, Dorcas L. Douglas: "I give * * * all of my real estate including moneys, bonds, stocks, notes, and mortgages, accounts and all other property of whatsoever nature to have and to hold the same during her natural life, and at the decease of my wife Dorcas L. Douglass I give and devise * * * all the residue of my estate remaining at the death of my beloved wife Dorcas L. Douglass, I give and bequeath and devise equally to be divided between Sylvester D. Craig, son of J.E. Craig, and Dr. Lawrence Craig, son of John Craig, and L. Sylvester Harrison." Mrs. Douglas, who held a life estate in shares of stock in the Winnsboro Bank, sold said shares of stock during her lifetime at a value more than the stock was worth at the time of the death of Dr. Douglas. The principal question decided was whether she was entitled to the increase in the value of the stock. The Court held that she was entitled to the increase, but that she was accountable to the remaindermen for the value of the stock as of the date of Dr. Douglas' death.
Also the case of Hamrick v. Marion, 176 S.C. 361, 180 S.E., 213, deals with the will of Mrs. Clara Dale Pryor Hamrick of Chester, S.C. in which a life estate in bank stock and in real estate was granted. The Supreme Court held that the life tenant under the terms of the will could mortgage the real estate to pay losses sustained by reason of the failure of the bank.
With reference to the language used to create a life estate in personal property, see the case of Calhoun et al. v. Furgeson, Adm'r, 3 Rich. Eq., 160, in which the testator uses the following language: "I will and bequeath to my dearly beloved wife, Rebecca, after the payment of my just debts, all my estate, both real and personal, during her natural life," the remainder over after her decease being to certain ministers as trustees of the Cokesbury Conference School in which case the life tenant is held to be a trustee for the remaindermen and must preserve the estate as he received it, and he may therefore be required to give an inventory of the property or security for its preservation according to circumstances.
See, also, Ex parte Richardson, decided in 1903, reported in 66 S.C. 413, 44 S.E., 964. That case was an action to construe a will and the Court held through Chief Justice Pope that, under the language of the will, a life estate was created in personal property with remainder over to a third person. The particular personal property involved was a bond and mortgage, and the Court held that since the life tenant assigned the bond and mortgage, the assignee was entitled only to the interest thereon.
The case of Carr v. Porter, 1 McCord, Eq., 60, at page 90, cited by counsel for plaintiff, to the point that the language which creates a fee-simple conditional in real property creates a fee simple in personal property, finds its explanation in Dott v. Cunnington, 1 Bay, 453, 1 Am. Dec., 624, in which case the Court holds that personal property with limitation over to heirs of the body of life tenant is too remote under the perpetuity rule, and, therefore, void. The same decision, in the last paragraph, expressly recognizes "that in many cases, personal chattels, or terms for years, may be limited over, either by executory devises or deeds, as effectually as real estates, if it is not attempted to render them unalienable beyond the duration of lives, or twenty-one years after. Harg. Co. Lit., 20. But the vesting an interest in a chattel, which in reality would be an estate tail, bars the issue, and makes all subsequent limitations void — the whole property, in such cases, vests in the first taker; and the reason which the law gives is, that it abhors perpetuities."
See, also, Duke's Ex'rs v. Dyches (1848), 2 Strob. Eq., 353, note, in which case Judge Nott gave a very interesting history of the development of the law of future interests in personal property, recognizes that a future interest in personal property can be created by a will, and expressly holds that it may also be created in a deed.
I therefore find and hold that under the law of this State the life estate may be created in personal property and that under the terms of the will of the testator herein the plaintiff takes only a life estate in the personal property. He is not entitled to the possession of personal property under the law of this State until the end of 12 months from the testator's death and the qualifying by the executor, for the reason that the executor is allowed 12 months within which to pay debts and cannot be discharged prior thereto. It is the duty of the executor to pay all taxes against the testator and to see that any inheritance tax is received by the State before a disposition can be had of the assets. Under the law of this State, if and when the personal property passes into the hands of the life tenant, he becomes a trustee for the parties in interest in remainder and cannot waste the estate. Under the case of Long v. Lea et al., above referred to, the Court has the power in its discretion to require that the life tenant give security, where a necessity for exacting a security is shown. The requirement of security must not impose on the life tenant such a burden which he could not discharge and thus defeat the intention of the testator to allow the life tenant the possession of the funds. Therefore, I would not require in this case a bond or security which might be unreasonable or which might work a hardship on the parties. No bond can be required of the executor where the will does not exact a bond, but if the executor should continue to hold the personal property for more than 12 months, he would become a trustee and should be required to give bond. In view of these facts, I will not require a bond of either party at the present time, but will leave the matter open for such motion to be made in the future as may be deemed advisable by any of the parties in interest at or before the expiration of 12 months from the time the executor has qualified, with leave to apply for such further orders in this suit as may be then necessary for the protection of the interest of all of the parties to the suit.
The law of this State permits the payment by the executor on the order of the Court out of the funds of the estate, of reasonable attorney's fees for necessary professional work incurred in the management or settlement of the estate, or for general advice as to the most proper and profitable course of administration of the assets, for the benefit of the estate, Hutchison v. Daniel, 170 S.C. 459, 171 S.E., 13. In Turnipseed v. Sirrine, 60 S.C. 272, 38 S.E., 423, a large array of attorneys were employed to protect the estate in the hands of the executor, and the Court sustained the disbursements. See, also, Akers v. Rowan, 36 S.C. 87, at page 92, 15 S.E., 350.
I think, therefore, that it is not only proper, but commendable, that this suit was instituted promptly and expeditiously without delay, for the purpose of passing on the questions at issue. The services rendered by the plaintiff's attorneys may primarily be for the benefit of the plaintiff, but ultimately these services are necessary for the settlement of the estate. This is especially true in the present case because some of the questions by reason of antiquity were novel. I think also that it is imperative for attorneys to appear on both sides of an issue which has been raised in regard to the settlement of the estate; and that an ex parte submission of the issues to the Court is never as effective nor as satisfactory as a real contest made in good faith by attorneys on both sides. Therefore, I think it is proper to order a payment of a fee to plaintiff's attorney to be paid by the executor out of the general funds of the estate as a part of the costs of the administration and to be accounted for by him in his annual return. In view of the value of the estate and of the importance of the services rendered, it is my judgment that a fee of $150.00 will be reasonable and proper to be paid to the plaintiff's attorneys in full and complete settlement of all services rendered or to be rendered by them in this suit for the benefit and protection of the assets and estate. Let the executor pay $100.00 of this amount at the present time and $50.00 thereof when the final judgment and decree of the Court is rendered in this suit. Let the question in regard to the execution of a bond with surety by the life tenant as trustee be left open until the further order of the Court herein which is to be rendered before the payment by the executor to the life tenant of any part of the personal property other than and except the interest and income which is due and payable to him forthwith and as soon as any income is received by the executor and which should be paid promptly as soon as the funds are available for the maintenance and support of the life tenant, who is aged and dependent.
Be it so ordered.
Messrs. Gregory Gregory and A.M. Sapp, for appellant, cite: Intention of testator to govern construction of will: 113 S.C. 532; 101 S.E., 852; 113 S.C. 416; 102 S.E., 715; 69 C.J., 77, 102, 129, 547; 28 R.C.L., 246; 140 S.E., 596.
Messrs. W.P. Robinson and Charles B. Elliott, for respondents, cite: Construction of will: 26 S.C. 450; 113 S.C. 416; 142 S.C. 239; 140 S.E., 596; 65 S.C. 390; 43 S.E., 878; 161 S.C. 235; 159 S.E., 546; 1 Rich. Eq., 400; 44 Am. Dec., 229; 69 C.J., 77; 177 S.C. 231; 181 S.E., 6; 23 R.C.L., 491.
April 8, 1936. The opinion of the Court was delivered by
The able and well-stated decree of Judge Gaston, who heard this case on Circuit, makes it unnecessary for this Court to do more than adopt the circuit decree as the judgment of this Court. Let it be reported.
Judgment affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BAKER and FISHBURNE concur.