Blount v. Walker

• Decision Date: 15 April 1889
• Citation: 9 S.E. 804,31 S.C. 13
• Parties: BLOUNT v. WALKER et al.
• Court: South Carolina Supreme Court

9 S.E. 804

31 S.C. 13

BLOUNT v. WALKER et al.

Supreme Court of South Carolina

April 15, 1889

Appeal from common pleas circuit court of Richland county; HUDSON Judge.

The will of Mrs. Harris, construed in the opinion, is as follows:

"In the name of God, amen. I, Sarah J. Harris, widow, of the city of Columbia, in the state aforesaid, being of sound mind, memory, and understanding, do make, publish, and declare this, my last will and testament.

" Item 1. I give, bequeath, and devise to my nephew, Julius H. Walker, and his heirs, to the use of the said J. H. Walker and his heirs, all the estate, real and personal, of which I may die seised, possessed, and entitled to, in trust, nevertheless, to permit my daughter, Mrs. Mary Delia Blount, for and during the term of her natural life (unless the trust be sooner executed, as in hereinafter provided in item 2,) to receive unto her sole, separate, and exclusive use, benefit, and behoof, all the rents, issues and profits of the said estate, upon her own receipts and acquittances; and to the said J. H. Walker, in his character

as trustee as aforesaid, full power and authority is given to sell, exchange, or transfer, if in his judgment expedient any part of the estate hereby given to him in trust, and to execute all necessary papers to that end, whenever he is thereunto requested by a paper in writing executed by said Mrs. Blount in the presence of some clerk of a court of record, who shall certify, under his hand and official seal, that the said request was so signed separately and privately, in his presence; and the said trustee, upon such sale, exchange, or transfer, shall either reinvest the proceeds, or else turn the same over to the said Mrs. Blount, for her sole, separate, and absolute use, freed and discharged of all trusts, as the said Mrs. Blount may direct by her writing, executed in manner and form as required aforesaid; for the request to sell, exchange, or transfer: provided, that the said J. H. Walker, as trustee as aforesaid, is satisfied that the disposition so requested by said Mrs. Blount is her free and untrammelled wish, and is for her own exclusive benefit and behoof; but, if not so satisfied, he shall rein vest the proceeds according to his best judgment, and under the rules of law. The power hereinbefore given to the said J. H. Walker, as trustee as aforesaid, is a continuing power, and shall not be exhausted by one or more exercises thereof, but shall continue in full force so long as the trust remains unexecuted and any portion of the trust-estate remains.

" Item 2. But if, at any time, the said property, or any part thereof, shall be legally advertised for sale for payment of the debt or debts of said Mrs. Blount, under or by virtue of any attachment, execution, or decree or order of court, or under any power of sale given by the said Mrs. Blount, to or for the use of any creditor or other person, (such attachment, execution, decree, order, or power of sale being valid in law or equity;) or if at any time said Mrs. Blount shall execute a valid power, authorizing a sale of the said property, or any part thereof, without advertisement; or if at any time process or order of any court of competent jurisdiction shall take the interest of said Mrs. Blount in said property, or any part thereof, away from her, then, in any of the cases specified in this item of this will, the uses above declared shall instantly shift to the issue then living of said Mrs. Blount, to them and their heirs forever, per stirpes, and not per capita, to the extent of the property affected by any of the advertisements, orders, or papers aforesaid, and to the same extent the trusts by this will declared shall instantly become executed; but, in default of issue of Mrs. Blount then living, then the said J. H. Walker shall continue to hold such property in trust to preserve the rents, issues, and profits thereof, and to accumulate the same until the death of said Mrs. Blount, when the property so affected, and its accumulations, shall pass under the provisions of item 3 of this will.

" Item 3. Upon the death of the said Mrs. Blount, the said property, or so much thereof as remains unconsumed and undisposed of in the hands of said J. H. Walker, trustee as aforesaid, is hereby bequeathed and devised to the issue of the said Mrs. Blount die without issue surviving her at the time of her death, then the same is devised and bequeathed to such person or persons, and in such proportions as the said Mrs. Mary Delia Blount may appoint, by her last will and testament duly executed, to the said appointees of the said Mrs. Blount, the trusts of this will shall become instantly executed, (so far as the same have not been before that time executed under the provisions of item 2 of this will,) in favor of the person or persons in this item designated as remainder-men, without any relinquishment or transfer of trust by the said trustee.

" Item 4. I hereby nominate and appoint Julius H. Walker executor of this will.

Pope & Shand, for appellants.

Allen J. Green, for respondent.

McIVER J.

The fundamental question in the case, as it seems to me, is, what estate did the trustee take under the will of Mrs. Harris? If he took an estate in fee, then there can be no intestacy, for the testatrix devises her whole estate to the trustee, and there was no room for any intestacy. If, however, the trustee took an estate only for the life of Mrs. Blount, then, as the ulterior limitations after the death of the life-tenant have failed by reason of her dying without issue, and without executing the power of appointment, there is a case of intestacy, and the estate, subject to the life-interest of Mrs. Blount, was then her sole heir, became vested in her, and the personal property passed under her will, while the real estate goes to her heirs; her will being sufficient to pass personal property, but insufficient to pass real estate. I think that, under a proper construction of the will of Mrs. Harris, the trustee took a fee. There can be no doubt that the testatrix intended to dispose of her entire estate, and did not intend to die intestate as to any portion thereof. This appears from the terms she has used, for she gives to the trustee "all the estate, real and personal, of which I may die seised, possessed, and entitled to." That this language imports an intention to dispose of the fee is shown by the case of Canedy v. Jones, 19 S.C. 300, 301, and the authorities there cited. Next, it will be observed that she uses technical terms which are act and appropriate to convey a fee,--"to my nephew Julius H. Walker, and his heirs, "and finally we observe that there is not residuary clause in the will, disclosing even an apprehension that she had left any portion of her estate undisposed of. We have then a case in which the testatrix has, in express terms, declared her purpose to dispose of her entire estate, which, the authorities above cited show, means not merely the entire corpus of the property, but the whole of her interest therein, which is conceded to have been a fee; and we find her using the most apt and appropriate technical words to convey such an interest,--to the trustee "and his heirs,"--and therefore I cannot doubt that she intended to confer a fee upon the trustee, and that she executed that intention in the most approved from of law. If this be so, then, as it seems to me, it follows inevitably that there could have been no intestacy. If the entire interest of the testatrix--the fee--passed to the trustee by the terms of the will, there could, of course, be nothing left to descend to the heirs or representatives; no intestacy.

It is said, however, that this being a devise to a trustee, who, it is conceded takes no beneficial interest, the well-settled rule is that, however ample may be the terms in which a devise to a trustee is made, he will only take such an estate as may be necessary to the complete execution of the trusts created; that a devise to a trustee and his heirs does not necessarily create in him an estate in fee, though the terms used are sufficient to create such, and estate; but that his estate will be measured by the purposes for which it was created, and will be cut down to such an estate as will be sufficient to serve those purposes. Conceding, for the purposes of this discussion, the correctness of that rule in its broadest extent, before it can have any practical application to this case, it would be necessary to show that the objects of the trust created by the will could be fully accomplished by an estate in the trustee less than a fee. We must therefore inquire into the objects of the trusts created. Without going into any detailed statement of these trusts which are minutely specified in the will, a copy of which will doubtless be embraced in the report of this case, it will be sufficient to say, in general terms, that the trustee was to hold the estate for the sole and separate use of Mrs. Blount during her life, in such a way as that the same could not be reached by her creditors, or disposed of by her, but with power in the trustee, upon her written request to sell the same or any part thereof, if he should deem it expedient to do so, and either reinvest the proceeds, "or else turn the same over to the said Mrs. Blount for her sole, separate, and absolute use, freed and discharged of all trusts." Now, while it may be conceded that, so far as what may be called the primary object of this trust--protecting the estate during the life of Mrs. Blount--is concerned, such object might be fully accomplished by placing an estate for the life of Mrs. Blount in the trustee, or cutting down his estate in fee to an estate purautre vie, yet I do not see how the next object--the power of...