Mars v. Gibert

• Citation: 77 S.E. 131,93 S.C. 455
• Parties: MARS et al. v. GIBERT et al.
• Decision Date: 04 February 1913
• Court: United States State Supreme Court of South Carolina

77 S.E. 131

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; 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 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 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, he will and shall instruct both boys and girls (so as occasion offers), in such chemical principles, as the success of their different operations depends upon, as malting, brewing, distilling, baking, fixing different colours, making vinegar, soap, cheese, butter, etc., etc.

" And it is my will that such children as reside conveniently in the neighborhood for attending the school, may be allowed to be instructed as the children of the farm school, those of parents not able to pay the schooling, gratis, and those who can afford it, at such rate as they and the master can agree upon, but to such number only as the trustees shall judge that the master can conveniently instruct, provided that all children admitted into the said farm school shall be obliged to conform to such rules and regulations, as the trustees or master shall from time to time reasonably make for the government thereof.

"And it is further my will, that in the choice of a master for the said farm school, skill, industry, and morals shall be the only qualifications attended to, and that in the admittance of poor children, no manner of regard shall be paid to what religion or sect they or their parents possess; and that it shall be a particular charge to the master, to teach and instruct them only, in the general, plain, and practical parts of religion and morality, without medling with speculative and controverted points, or with such as constitute the particular character of any sect.

"In case that it should appear to the society that the yearly income of the estate by this my last will given and devised, should not be sufficient to carry immediately my above disposition into full effect (which however is not expected), I in that case request them to make such beginning as the yearly income may bear the expenses of, in such manner that the stock on the farm, as horses, mares in particular, horn cattle & sheep may be kept up for the use of the farm, but as I shall leave a considerable sum in ready money, I recommend that such suitable but simple buildings in the way of my present overseer's house may be immediately erected to answer the plan to the whole extent, but that all the outward timber may be of chestnut.

"It is also my will that my tract of land, part of which I do now keep inclosed and reside on, made up of twenty-one original tracts, and by a late resurvey containing two thousand six hundred and thirty acres, shall be forever so far indevisable as that five hundred acres shall be laid out for the farm, including what is under fence, and that one thousand acres shall forever remain in wood or forest, in order to supply the farm with convenient range and with fuel and timber, and in process of time contribute to the support of the institution, but that the surplus land over and above the five hundred, and one thousand acres before specified, may be by the trustees to farm let in such tracts as they shall think to the best advantage, provided that no tracts of land by this my last will devised shall ever be let on a more extensive lease than that of fourteen years, and that every such lease shall contain a condition that the lessee shall not cut or wilfully suffer to be cut any timber or wood from the said thousand acres reserved for the use of the farm school, unless by and with the express permission of the trustees.

"And it is my will, that in case the Agricultural Society of South Carolina, should against my expectation (the plan being relative to the institution of the society) should decline or neglect appointing trustees for taking upon

...