Appeal
from circuit court, Hampton county; Joseph H. Earle, Judge.
Action
by Alice Norma Allen against W. G. Ruddell, J. H. Ruddell, W
W. Morris, and the Mutual Life Insurance Company of Kentucky
to set aside certain mortgages, made by J. H. Ruddell, as
executor of the estate of Hattle Ruddell, deceased, to
defendant company, and a certain deed made by him to
defendant Morris, and for an accounting by defendant J. H
Ruddell as such executor, and for a partition of lands
devised by said Hattle Ruddell to plaintiff and defendant W
G. Ruddell. Judgment was rendered for plaintiff, and
defendants J. H. Ruddell and W. W. Morris appeal. Affirmed.
The
following is a copy of the will:
"State of South Carolina, County of Beaufort. Know all
men by these presents, that I, Hattie C. Ruddell, of the
county of Beaufort and state of South Carolina, being in ill
health but of sound and disposing mind and memory, do make
and publish this, my last will and testament, hereby revoking
all former wills by me at any time heretofore made: And as to
my worldly estate, and all the property, real and personal,
or mixed, of which I shall die seised and possessed, or to
which I shall be entitled at the time of my decease. I
devise, bequeath, and dispose thereof in the manner
following, to wit: First. My will is that all my just debts
and funeral expenses shall by my executor (hereinafter named)
be paid out of my estate as soon after my decease as shall by
him be found convenient. Item. I give, devise, and beneath to
my beloved husband, John H. Ruddell, seven thousand dollars,
four thousand cash, balance in annual installments from net
proceeds from estate. Item. I give, devise, and bequeath to
my beloved children, Walter, Alice Norma, Julian Munford,
Malcolm Leonard, and such child or children as may hereafter
be born to me, all the balance of my estate, real, personal,
and mixed, to be divided in equal proportions, share and
share alike, as hereinafter directed, said estate consisting
of all the following parcels or tracts of land: First. That
portion of land, situate in county and state, aforesaid, and
known as 'Joint Stock Plantation.' Second. That
portion of land, situate in same county and state, and known
as 'New Castle Plantation.' Third. That portion of my
land, situate in same county and state, known as 'Sandy
Hook Plantation.' Fourth. That portion of my land,
situate in same county and state, containing one hundred
acres, more or less, originally cut off from the Sandy Hook
plantation, on which my residence stands, and known as
'Ivanhoe,' together with all the stock, provisions,
horses, and mules, farming implements, gears, wagons, and all
the goods and chattels connected with or attached to the
aforesaid plantation, and all the buildings and appurtenances
thereon, and also balance of stock, moneys on hand and due me
at the time of my decease. And I hereby do direct that my
executor, hereinafter named, shall, as soon as practicable,
collect all the moneys that may be due me at the time of my
decease, and invest the same for the best interest of my
children aforesaid and mentioned; in such manner as his
judgment may suggest. I also direct, and fully empower and
authorize, that my executor shall, at any time previous to
the twenty-first birthday of my youngest child, sell or
dispose of any portions of my above devised and bequeathed
premises (except the plantation known as 'New
Castle,' and except the place known as
'Ivanhoe'), and reinvest in such manner as his
discretion shall suggest for the best interest of said
beloved children. And I hereby give him full power and
authority to do the same. I direct that the place known as
'Ivanhoe' and the plantation known as 'New
Castle' shall not be sold or otherwise disposed of,
except the same be ordered by a court of competent
jurisdiction. Proceeds to be applied, in the event of such
sale, strictly in accordance with the decree of said court
for the benefit of my aforesaid children. And that any
portion or all of the balance of my estate shall be disposed
of or sold at the discretion of my said executor as
aforesaid. I hereby reiterate and confirm it. It is my will
that no actual
division of my estate take place until my youngest child
shall have attained the age of twenty-one years, but, being
uncertain what contingencies may arise. I hereby direct that
my said executor shall have full power and authority to
delivers to each of my said children the sharer or proportion
of my estate due him or her, as they successively attain to
the age of twenty-one years, if in his judgment their
interest will be thus best subserved. Impressed with the
uncertainly of human life, it is my will, in the event of the
death of either of my said beloved children, without issue or
before attaining his or her majority, that his or her share
shall be equally divided among my surviving children: and
should my beloved husband, John H. Ruddell, survive all my
children (they dying without issue), it is my will that the
entire estate shall pass to my said beloved husband, John H.
Ruddell; and shall my is and children survive the said John
H. Ruddell, leaving no issue, and all die before attaining
the majority, it is my will, and I hereby direct, that the
portion of my estate hereinbefore bequeathed to my children,
said to be equally divided between Mrs. Kate Dell, of Scriven
county, Georgia (formerly Miss. Kate McCall), and Hattie
Crockett, daughter of Mr. and Mrs. K. A. Crockett, also of
Scriven county, Georgia, unless otherwise changed and
directed by the will of my beloved husband, John H. Ruddell;
and I hereby give my believed husband full power and
authority to change it if in this judgment he may think it
best. Lastly, I do hereby ___ and appoint my said beloved
husband, John H. Ruddell, to be the executor of this, my last
will and testament, conferring upon him full power and
authority to exercise his discretion as aforesaid, and to
appoint a successor or successors, with power as he shall by
will direct. In testimony where of, I, the said Hattie C.
Ruddell, have hereunto this, my last will and testament,
contained in two sheets of paper and including five pages,
and to every page, subscribed my name, and to this, the last
sheet thereof, subscribed my name and affixed my seal. This
twenty-sixth day of March, in the year of our Lord one
thousand eight hundred and seventy-seven (1877).
[L. S.] Hattie C. Ruddell.
Signed, sealed, published, and delivered by the said Hattie
C. Ruddell as and for her last will and testament, in the
presence of us, who, at her request and in the presence of
each other, have subscribed our names as witnesses thereto.
N. R. Rushing. H. H. McCall. J. E. Kittles."
McIVER
C.J.
Mrs
Hattie C. Ruddell died, about the 31st of March, 1877, seised
and possessed of a considerable estate, both real and
personal, which she disposed of by her will, hearing date the
26th of March, 1877, a copy of which, as set out in the
"case," should be incorporated in the report of
this case. Of this will the defendant J. H. Ruddell was
appointed executor, and duly qualified as such. The testatrix
left, surviving her, her husband, the said J. H. Ruddell, and
four children, viz. Walter G., Alice Norma (who has since
intermarried with Paul H. Allen), Julian Munford, and Malcolm
Leonard, the last two of whom have died since the death of
the testatrix, unmarried and childless, and their shares, by
terms of the will, became vested in their surviving brother,
Walter G. Ruddell, and their sister, Alice Norma Allen, and
thus the plaintiff and the defendant Walter G. Ruddell are
now entitled to the property devised by the testatrix to hear
four children. In the first item of the will, the testatrix
directs that her debts and funeral expenses shall be paid by
her executor out offer estate as soon after her decease as he
may find it convenient to do so. The next item reads as
follows: "I give, devise, and bequeath to my beloved
husband, John H. Ruddell, seven thousand dollars, four
thousand cash, balance in annual installments from not
proceeds from estate." In the next item she gives,
devises, and bequeaths to her four children, naming them, and
such child or children as may thereafter be born to her,
"all the balance of my estate, real, personal, and
mixed, to be divided in equal proportions, share and share
alike, as hereinafter directive, said estate consisting of
all the following parcels, or trust of land": First, a
place known as "Joint Stock"; second, a place known
as "New Castle"; third, a place known as
"Sandy Hook"; fourth, a place, originally cut off
from Sandy Hook, known as "Ivanhoe,"--together with
"all the stock, provisions, horses, and mules, farming
implements, gears, wagons, and all the goods and chattels
connected with or attached to the aforesaid plantations, and
all the buildings and appurtenances thereon, and also balance
of stock, moneys, on hand and due me at the time of my
decease." The will also contains the following
provisions: "I also direct, and fully empower and
authorize, that my executor shall, at any time previous to
the twenty-first birthday of my youngest child, sell or
dispose of any portion of my above devised and bequeathed
premises, (except the plantation known as 'New
Castle,' and except the place known as
'Ivanhoe'), and reinvest in such manner as his
discretion shall suggest for the best interests of said
beloved children," --and proceeds to forbid, expressly,
the executor from selling or otherwise disposing of either
New Castle or...
