77 S.E. 131 (S.C. 1913), Mars v. Gibert

Citation:77 S.E. 131, 93 S.C. 455
Opinion Judge:WOODS, J.
Party Name:MARS et al. v. GIBERT et al.
Attorney:J. Moore Mars and J. Howard Moore, both of Abbeville, for appellants. Greene & Hill, of Abbeville, for respondent.
Case Date:February 04, 1913
Court:Supreme Court of South Carolina

Page 131

77 S.E. 131 (S.C. 1913)

93 S.C. 455

MARS et al.

v.

GIBERT et al.

Supreme Court of South Carolina

February 4, 1913

Appeal from Common Pleas Circuit Court of Abbeville County; R. W. Memminger, Judge.

Action by E. A. Mars and others against Albert Gibert and others. From an order sustaining a demurrer to the answer, and granting the relief demanded in the complaint, defendants appeal. Reversed.

The will creating the trust in question is as follows:

"State of South Carolina, Abbeville County.

"In the name of God--Amen.

"I, John de la Howe, of the county of Abbeville, in the state of South Carolina, M. D., being of sound and disposing mind, memory and understanding, do make, ordain and publish this my last will and testament.

" In primis, it is my will and desire that my remains shall be buried as near as can be to the spot where those of the late Miss Rebecca Woodin are deposited, on the hill opposite to the dwelling house wherein we both resided together, and I still do reside, on my plantation or farm named Lethe, as the last mark and testimony of my friendship and sense which I ever have retained of her merit; and it is further my will, that as soon as it can conveniently be done after my decease, a substantial brick wall shall be build 'round our sepulchers, not less than 10 feet square in the clear, eight feet above ground, and two bricks thick; [93 S.C. 456] with a substantial door and lock, and that the whole of it, shall forever be kept up and in good order, and the area within clear of bushes and weeds; that the following inscription in large iron capitals shall forever be kept incased in the door, 'Rebecca Woodin obiet 4th Oct. ris 1788--Joes de la Howe fundator Seminarie Agriculturalis,' with the date of my decease.

"I give and devise all my real and personal estate of whatsoever nature it may be, so in possession as in right (excepting what is hereafter by this my last will otherwise disposed of), to the president and Agricultural Society of this state of South Carolina, now or lately holding their usual meetings in the city of Charleston, and to such of their members as the said society pro tempore shall name and appoint to take the execution and trust contained in this my last will and testament upon them, and to their successors in said appointment forever. That is to say, in trust for the following intent, uses, and purposes, and for no other use, intent, or purpose, whatsoever, viz.: For causing and procuring, to be erected, established, organized, and forever kept up on that part of the plantation where I now reside or any other part between the springs and mouth of the branch which runs through the yard, and Little river, as Agricultural or Farm School, in conformity as near as can be (mutatis mutandis) as occasional circumstances may render advisable, and the wisdom of the society shall suggest, to a plan proposed in the Columbian Magazine for the month of April, one thousand seven hundred and eighty-seven; with this difference-- that this farm school is principally by me intended for by the yearly income of the estate by me devised and bequeathed by this my last will, forever both educating in conformity to the said plan, and also lodging, feeding and uniformly clothing twelf poor boys and twelf poor girls, whose parents, or who themselfs have resided in Abbeville county aforesaid, not less than six years, and actually continue to reside within the compas or [93 S.C. 457] extent of said county; but that orphan children (Cateris parebus) shall have the preference. And it is my will that they shall manufacture such of their clothing themselfs, as can be made out of the produce of the farm, and that the trustees shall be pleased to procure out of the ready money which I shall leave at my decease, such implements for facilitating labour, as may not only answer that purpose but contribute at the same time to the facilitating the labour of the neighbors and making them more industrious; provided that not above one hundred pounds sterling be employ'd in the purchase of said implements. And I do wish and recommend, the use of beach leaves gathered before the frost, and dried in the shade for bedding, as the leaves of the beach tree, cured as mentioned, make a comfortable, and by far more healthy bedding than feathers, as they will remain good for four or five years, and may be easily renewed, and as being introduced

Page 132

amongst the poorer class of citizens (whose bedding is now a blanket) they may thereby enjoy one that is comfortable and healthy.

"And it is my will that such part of my personal estate as the trustees shall not think immediately necessary or particularly useful for carrying on the farm and farm school, shall be by them sold in such manner and such terms as they may think the most advantageous; but that in particular my surveying compass, chain, and instrument case, shall be reserved for the use of the farm school, as likewise such books as in their judgment may be useful to the master, and particularly, Shaw's Chemistry, so that he thereby may be enabled to comply with the next following article, if unacquainted with the principles, viz.: That it shall be the duty of the master, that besides having the boys instructed in reading, writing, arithmetic, principles of geography, and of geometry so far as to render them versed in practical surveying, and the girls in reading, writing and four common rules of arithmetic...

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43 practice notes
  • 886 F.2d 838 (7th Cir. 1989), 88-1686, United States v. Jackson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 25 Septiembre 1989
    ...to comply with court order not to shave prior to lineup); United States v. Nix, 465 F.2d 90, 95 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972), reh'g denied, Nix v. United States, 409 U.S. 1119, 93 S.Ct. 918, 34 L.Ed.2d 704 (1973) (comment on and jury instructi......
  • 148 N.E.2d 805 (Ill.App. 2 Dist. 1958), 11091, Hardy v. Davis
    • United States
    • Illinois Court of Appeals of Illinois
    • 21 Marzo 1958
    ...additional facilities of a similar nature have become available, and a literal execution would be wasteful, (Mars v. Gibert, 93 S.C. 455, 77 S.E. 131; Adams v. Page, supra [76 N.H. 96, 79 A. 837]), or when a different mode of execution would more completely fulfill the charitable purpose of......
  • 30 N.E.2d 657 (Ill. 1940), 25942, Village of Hinsdale v. Chicago City Missionary Soc.
    • United States
    • Illinois Supreme Court of Illinois
    • 16 Diciembre 1940
    ...additional facilities of a similar nature have become available, and a literal execution would be wasteful (Mars v. Gibert, 93 S.C. 455, 77 S.E. 131; Admas v. Page, supra), or when a different mode of execution[375 Ill. 234] would more completely fulfill the charitable purpose of the donor.......
  • 465 F.2d 90 (5th Cir. 1972), 72-1323, United States v. Nix
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 1 Agosto 1972
    ...Jr., Defendant-Appellant. No. 72-1323 [*] United States Court of Appeals, Fifth Circuit. Aug. 1, 1972 Certiorari Denied Nov. 13, 1972. See 93 S.Ct. 455. Page 91 [Copyrighted Material Omitted] Page 92 Wayne Douglas Mancuso, Gretna, La. (Court-appointed), for defendant-appellant. Gerald J. Ga......
  • Free signup to view additional results
42 cases
  • 886 F.2d 838 (7th Cir. 1989), 88-1686, United States v. Jackson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 25 Septiembre 1989
    ...to comply with court order not to shave prior to lineup); United States v. Nix, 465 F.2d 90, 95 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972), reh'g denied, Nix v. United States, 409 U.S. 1119, 93 S.Ct. 918, 34 L.Ed.2d 704 (1973) (comment on and jury instructi......
  • 148 N.E.2d 805 (Ill.App. 2 Dist. 1958), 11091, Hardy v. Davis
    • United States
    • Illinois Court of Appeals of Illinois
    • 21 Marzo 1958
    ...additional facilities of a similar nature have become available, and a literal execution would be wasteful, (Mars v. Gibert, 93 S.C. 455, 77 S.E. 131; Adams v. Page, supra [76 N.H. 96, 79 A. 837]), or when a different mode of execution would more completely fulfill the charitable purpose of......
  • 30 N.E.2d 657 (Ill. 1940), 25942, Village of Hinsdale v. Chicago City Missionary Soc.
    • United States
    • Illinois Supreme Court of Illinois
    • 16 Diciembre 1940
    ...additional facilities of a similar nature have become available, and a literal execution would be wasteful (Mars v. Gibert, 93 S.C. 455, 77 S.E. 131; Admas v. Page, supra), or when a different mode of execution[375 Ill. 234] would more completely fulfill the charitable purpose of the donor.......
  • 465 F.2d 90 (5th Cir. 1972), 72-1323, United States v. Nix
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 1 Agosto 1972
    ...Jr., Defendant-Appellant. No. 72-1323 [*] United States Court of Appeals, Fifth Circuit. Aug. 1, 1972 Certiorari Denied Nov. 13, 1972. See 93 S.Ct. 455. Page 91 [Copyrighted Material Omitted] Page 92 Wayne Douglas Mancuso, Gretna, La. (Court-appointed), for defendant-appellant. Gerald J. Ga......
  • Free signup to view additional results