Testatrix
bequeathed property in trust to her daughter for life, and
provided 'that my daughter Anna is hereby authorized and
empowered by her last will and testament, duly executed by
her, to dispose of this bequest * * * as she pleases.'
The daughter, in her will, recited: 'Whereas, I am
entitled to legacies under the last will of my deceased
mother, * * * and to a distributive share in the several
estates of my deceased sister * * * and my brother,' and
devised 'the entire property and estate to which I am now
in any wise entitled, and which I may hereafter acquire, of
whatever the same may consist, to my beloved husband.'
Held, that this was a valid execution of the power.
On May
13, A.D. 1854, Mrs. Floride Calhoun was seised and possessed
of the plantation or tract of land situate, lying, and being
in that part of Pickens district, which is now Oconee county
in the state of South Carolina, on the east side of Seneca
river, known as the 'Fort Hill Place,' containing
1,110 acres, more or less; and on that day the said Floride
Calhoun and her daughter, Cornelia M. Calhoun, sold and
conveyed this plantation or tract of land, together with
certain negro slaves and other personalty, to Andres P
Calhoun for the sum of $49,000; Cornelia M. Calhoun having no
interest whatever in the real estate so sold and conveyed.
Andrew P. Calhoun duly executed his certain bond, under seal
to Floride and Cornelia, conditioned for the payment of
$40,200 to Floride Calhoun, and the remaining $8,200 to
Cornelia M. Calhoun, and to secure the payment of the bond
representing the purchase money, and as a part of the same
transaction, at the same time duly executed and delivered to
Floride and Cornelia his certain conveyance, by way of
mortgage, and thereby granted, bargained, sold, and released
the plantation or tract of land upon the condition that if he
should well and truly pay, or cause to be paid, the sums of
money in the said bond mentioned to be paid, according to the
true intent and meaning thereof, the conveyance should be
null and void, otherwise to remain in full force and virtue.
On the 27th day of June, A.D. 1863, Floride Calhoun duly made
her last will and testament in writing, wherein and whereby,
among other things, she devised and bequeathed as follows:
'Second.
To my daughter Anna Maria, wife of Thomas G. Clemson, of
Maryland, I give, devise, and bequeath during her life, and
for her sole and separate use, the following property: My
house and lot in Pendleton, and the land attached and
belonging thereto, purchased by me from Mrs. William Adger,
together with the furniture and everything in the house and
upon the premises, reserving, however, the silver and such
other articles as I may hereinafter specifically give to
others; also all my jewelry, and the silver cup and
prayer-book, presented to me by the church at Newport,
Rhode Island. At Anna's death I devise and bequeath all
the above-mentioned property to her daughter, Floride
Clemson, and at the death of Floride, if she dies without
issue, I devise and bequeath it to my sons John and
William's children, then living, equally among them;
or, if they be dead, to their issue then living. * * *
' '(19) I am possessed still of a large residue of
property, consisting principally of a debt due me by my son
Andrew, for the purchase of Fort Hill, amounting to about
forty thousand two hundred dollars, secured to me by bond
and mortgage. I have also an unsecured interest in a gold
mine in Dahlonega, Georgia, belonging to the estate of my
late husband, and also an interest in the estate of my
second son, Patrick, and second daughter, Cornelia, besides
other property. Whatever real or personal property I may
possess at my death, and not hereinbefore specifically or
otherwise disposed of, I direct my executors to sell
whenever they shall deem it advisable. I direct my
executors to collect, as fast as possible, the
above-mentioned residue of my estate, and, after paying off
my debts and the legacy to Calhoun Clemson, the remainder I
wish divided into four parts, which I dispose of as
follows: (20) One part, being the fourth of the above
residue, I give and bequeath to my daughter Anna during her
life, and for her sole and separate use, and at her death I
will and bequeath it to her daughter, Floride, and at
Floride's death, if she die without issue, I will and
bequeath it to the children of my deceased sons John and
William, then living, equally among them, or to their
issue, if they be dead, issue to represent the parents. The
better to effect my intentions in regard to the property in
this and in the second clause, given to Anna, I appoint
Edward Noble, of Abbeville, trustee for it, and vest in him
the legal title. Should Anna at any time wish to sell the
house and lands in Pendleton, or all or any portion of the
property given to her for life, the trustee, provided it
meets with his approval, is authorized to dispose of it
according to the wishes of my daughter, upon having her
written request for so doing. The proceeds of such sale the
trustee shall hold subject to the trusts and limitations
declared in reference to the original property. The trustee
is authorized and required to invest the proceeds, and also
the fourth part of the residue herein given to her, in such
property or in such way as she may in writing direct,
provided it meets with his approval. The trustee is
authorized and required from time to time to change such
investments as often as he may be directed so to do by my
said daughter in writing, provided it meets with his
approval, holding always the substituted property or
reinvestments subject to the trusts and limitations
aforesaid. If from death or any cause there is no trustee,
or if Anna shall at any time shall desire to change her
trustee, she shall have the power so to do, and to appoint
another by any instrument
in writing, under seal, executed by her in the presence of
two subscribing witnesses; and as often as she may desire
to change her trustee she shall have the power so to do by
observing the form and solemnity above described. (21)
One-fourth part of said residue of my said estate I give
and bequeath to my granddaughter, Floride Clemson; but if
Floride should die without living issue, I give and
bequeath it at her death to the children of my sons John
and William, or the issue of the, if they be dead, the
issue to take by representation. (22) The remaining
two-fourths I dispose of as follows: To Kate P. Calhoun, my
daughter-in-law, I give and bequeath the one-half of the
one-fourth of said residue of my estate, to be enjoyed by
her during widowhood. At her death or marriage, whichever
first happens, I give and bequeath the same to such of her
children, being my grandchildren, as may then be alive. But
should either of my said grandchildren die under twenty-one
years of age, leaving no child or children, the share of
such deceasing grandchild shall go to the survivors or
survivor of them, or their issue, the issue representing
the parent. If Kate should die before me, what I have given
her in the will is not to revert to my estate, but is to go
to her children, my grandchildren, living at my death,
subject to the conditions and limitations above expressed.
(23) The remaining fourth and half of a fourth of the
above-said residue of my estate I give and bequeath to my
grandsons, John C. Calhoun and Benjamin A. P. Calhoun, sons
of my deceased sons John and William Lowndes Calhoun, child
of my second son, William, equally among them; and, should
either of them die under twenty-one years of age, leaving
no issue, the share of such deceased child shall go to the
survivor or survivors.'
On the
22d day of January, A.D. 1866, Floride Calhoun duly made,
published, and declared a codicil to her last will and
testament, wherein, among other things, she revoked the
devise of the real property in Pendleton, made to Anna
Clemson, in the second paragraph of her last will and
testament, and devised the same to other persons, and
provided as follows:
'(2)
By the nineteenth clause of the will I direct the said bond
debt on my deceased son Andrew, secured by mortgage on Fort
Hill, together with all other property possessed by me, and
not before disposed of, to be collected by my executors,
and the proceeds to be divided into four parts. One part I
gave to Anna, one part to her daughter, Floride, and the
other two parts to Kate and her children, as will appear by
clauses 20, 21, 22, and 23 of the will. I desire now to
change the disposition of the said bond and mortgage debt,
and do now give and bequeath it in the following manner:
Three-fourths of my interest in said bond and mortgage
debt, amounting to about forty thousand two hundred
dollars, I hereby give and bequeath to my daughter Anna M.
Clemson, to be enjoyed by her under clause twenty of the
will, and according to the provisions of that clause to
vest in the same trustee, and to be subject to all the
powers, trusts, conditions, and limitations of that clause
precisely as the bequests therein made were subject to
them, with this exception and alteration: that my daughter
Anna is hereby authorized and empowered by her last will
and testament, duly executed by her, to dispose of this
bequest of three-fourths of said bond and mortgage debt as
she pleases. If she does not thus dispose of it at her
death, I give and bequeath it, the said three-fourths, to
her daughter, Floride, and, should the said Floride die
without leaving issue, I give and bequeath it at her death
to her brother, Calhoun Clemson; but, nevertheless, Floride
shall likewise have power to dispose of it at her death as
she pleases, by a last will and testament duly
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