Adger v. Kirk

• Decision Date: 30 June 1921
• Docket Number: 10655.
• Citation: 108 S.E. 97,116 S.C. 298
• Parties: ADGER v. KIRK ET AL.
• Court: South Carolina Supreme Court

108 S.E. 97

116 S.C. 298

ADGER v. KIRK ET AL.

No. 10655.

Supreme Court of South Carolina

June 30, 1921

Appeal from Common Pleas Circuit Court of Charleston County; Frank B. Gary, Judge.

Suit by John B. Adger, as administrator d. b. n. c. t. a. of the estate of Mary L. F. Flinn, deceased, against Helen Octavia Kirk and others. From a decree for plaintiff which sustained exceptions of the Presbyterian Church in the United States to the report of the master, Helen Octavia Kirk and another appeal. Affirmed.

The following is the decree of the court below:

This is an action instituted by John B. Adger, as administrator d. b n. c. t. a. of the estate of Mary L. F. Flinn, deceased against Helen Octavia Kirk and others claiming an interest under the said will. He asks for the instruction of the court as to the proper interpretation of certain provisions thereof. The issues were referred to the master, who held several references, took testimony, and made his report. To this report exceptions are taken by the trustees of the General Assembly of the Presbyterian Church in the United States because, as they allege, the master erred in holding as a matter of law that the exercise by Harvey W. Flinn of the power of appointment in his will of 1908 was the only proper exercise of his said power, and in not holding that the power of appointment was properly exercised by his last will, in 1916, which was properly executed and probated under the laws of the state of Tennessee, where he resided.

J Lindley Flinn, as executor of Harvey W. Flinn, also excepts because the report fails to provide for the payment of the debts of the said Harvey W. Flinn which are claimed against the executor of the estate of the said Harvey W. Flinn in the state of Tennessee.

As explanatory of the exceptions, it should be stated that the will of Mary L. F. Flinn, the will of which an interpretation is sought, was executed in the state of Alabama, in Jefferson county, and contains this preamble: "I, Mary L. F Flinn, wife of the Rev. Harvey W. Flinn, of the city of Bessemer and county and state aforesaid," etc.

After making certain bequests, the will directs that, as to the remaining two-thirds of such rest, residue, and remainder, "I will and direct that the same be invested by my executors and the net income thereof paid to my husband, Harvey W. Flinn, for the full term of his natural life, and upon his death I direct my executors to pay over one-half of the corpus of this trust fund to such persons or for such estates as my said husband by his last will shall direct." This will had three attesting witnesses and was admitted to probate in Charleston county, S. C.

In 1908 the said Harvey W. Flinn, then residing in the state of Georgia, executed his will. It had three attesting witnesses. The laws of Georgia required only two. In unmistakable language he undertook to exercise the power of appointment above referred to. This will was admitted to probate in Charleston, S. C.

In 1916 Harvey W. Flinn, residing in Tennessee, executed another will, expressly revoking all prior wills by him made. It had two attesting witnesses. The laws of Tennessee required only two. It was admitted to probate in the state of Tennessee. This will contains this language: "Being of sound mind, in the exercise of the power and authority vested in me, do hereby make * * * hereby revoking any former will by me at any time made."

The trustees of the General Assembly of the Presbyterian Church in the United States were the beneficiaries under this last-attempted exercise of the power of appointment referred to.

The property that would go to the appointee under a valid exercise of the power is entirely personal property.

The questions that arise under the exceptions of the trustees of the General Assembly of the Presbyterian Church in the United States are:

(1) Was the will of Harvey W. Flinn made in Tennessee his last will?

(2) Did it revoke his former will, made in Georgia?

(3) Was it a valid exercise of the power conferred upon Harvey W. Flinn by the will of his wife made in Alabama?

Let us briefly consider the first question:

The master finds that "this Tennessee will, executed before two witnesses, conforming to the laws of that state, is recognized as controlling the disposition of personalty belonging to the testator, wheresoever situate. It is therefore both his 'last will' and his 'last valid will,' though not so recognized in reference to the power conferred under the will of Mary L. F. Flinn."

I agree with the master as to the first part of the proposition, to wit, that the Tennessee will was the "last will" and the "last valid will" of Harvey W. Flinn and disposed of his personal property wherever situated. The answer to the first question above stated is therefore in the affirmative. But I cannot agree with his conclusion that the Georgia will, though revoked in part, was not revoked in so far as it undertook to exercise the power of appointment.

It will not be questioned that the donor of the power had the right to prescribe the manner in which the appointment should be exercised. She has directed that her executors pay over the trust fund in question "to such person or for such estates as my said husband by last will shall direct." It would indeed present a legal anomaly to hold that the Georgia will had been revoked and yet may do what can only be done by testator's last will.

My conclusion...