Carolina Sav. Bank v. Ellis

• Decision Date: 28 September 1934
• Docket Number: 13911.
• Parties: CAROLINA SAV. BANK v. ELLIS et al. (COLE et al., Interveners).
• Court: South Carolina Supreme Court

176 S.E. 355

174 S.C. 69

CAROLINA SAV. BANK v. ELLIS et al. (COLE et al., Interveners).

No. 13911.

Supreme Court of South Carolina

September 28, 1934

Appeal from Common Pleas Circuit Court of Charleston County; Wm. H Grimball, Judge.

Suit by the Carolina Savings Bank against Viola B. Ellis and others in which Mary Jane Campbell Cole and others intervened. From an adverse decree, interveners appeal.

Affirmed.

The report of the master F. K. Meyer, and the decree of the circuit judge, Wm. H. Grimball, directed to be reported, are as follows:

Report of Master.

To the Honorable, the Court of Common Pleas:

John Richardson Campbell died in the city of Charleston, on the 19th day of July, 1930, leaving an estate of the appraised value of $408,715.77, the residue of which, being practically the entire estate, he directed by his last will and testament duly admitted to probate in the probate court for Charleston county, should be distributed by his named executor, the Carolina Savings Bank of Charleston, in equal shares to Viola B. Ellis, Herbert F. Goodwin, W. M. De Lesline, Marie L. De Lesline, and each of the next of kin of the testator, who, in the event of his having died intestate would have inherited from him under the statute of distribution of the state of South Carolina.

Alleging the above facts and its qualification as executor, the plaintiff filed its complaint in this court on the 29th day of October, 1930, setting out its lack of knowledge or information as to the lawful heirs and next of kin of John Richardson Campbell and asking inquiry and determination and direction by the court as to its duty in connection with the carrying out of the terms of the said will.

The beneficiaries named in the will were made parties defendant, as were Arthur Drummond Hopkins, Albert John Roberts, Lawrence Roberts, Frances Richardson Clark, Florence Richardson Bruner, William F. Benet, claiming to be next of kin, and John Doe and Richard Roe, fictitious names used to represent other next of kin of the testator, if any.

The matter was referred to me to take the testimony and report the same with my conclusion and recommendation as to law and fact, by order dated February 4, 1931, in which default was decreed as to possible claimants in the John Doe and Richard Roe class, as well as to Georgia C. Merck, who had been allowed to intervene as a party defendant by order dated January 9, 1931, and whose rights, if any, have not been further presented.

The executor having disclosed for the record its limited information as to the family history of testator and the sources thereof, together with inquiries received, it was deemed advisable, and by agreement of counsel, the master recommended and the court ordered on the 26th day of May, 1931, that there be published once a week for three weeks in the Evening Bulletin, a newspaper published in the city of Philadelphia, Pa., and in the Irish Independent, a newspaper published in the city of Dublin, Ireland, an advertisement reading as follows:

"Estate John Richardson Campbell

Who died at Charleston, S.C. July 19, 1930, the son of John Campbell, born in Dublin, Ireland, 1815 who emigrated to Philadelphia, Pa., and later to Charleston, S.C. The heirs of the said John Richardson Campbell, if any, are requested to communicate with the undersigned, with proof of such heirship. Claimants, if any, failing to communicate with the undersigned on or before July 20th, 1931, will be barred from participation in said Estate, under the provisions of Order of the Court of Common Pleas for Charleston County.

Carolina Savings Bank, as Executor,

Charleston S. C."

On the 22d day of September, 1931, the plaintiff executor submitted for the record affidavits of the publication of said notice as directed with a report of all responses thereto, and upon my report and recommendations thereon, filed September 23, 1931, an order and rule was entered on the 26th day of September, 1931, requiring all of the persons by whom or in whose behalf tentative claims had been so filed to show cause on or before October 26, 1931, why they should not be debarred from participation in the distribution of said estate, with the right to such of said claimants as so desired to intervene by properly explicit petition on or before said date.

The method prescribed in said order for service of said rule by mailing a copy to each of the said persons was followed by the executor, and all of said persons were barred by its terms, except these claiming an interest under the information filed with the executor by Attorney Honour B. Gelson, of Brooklyn, N. Y., for Mary Jane Cole et al. and Connolly L. Smith et al., represented by Messrs. Mitchell & Horlbeck, who allege an interest through the same line.

The minutes of reference held by me in Charleston and Savannah, together with the numerous exhibits offered, are herewith filed, and there are in the record a number of depositions, with exhibits, taken in Coleraine, Ireland, Brooklyn, N. Y., and in the city of Philadelphia.

As the case is made up and finally submitted, there are three sets of claimants:

The Charleston claimants: Arthur Drummond Hopkins, Albert John Roberts, and Lawrence Roberts, claiming as greatgrandchildren of the maternal grandparents of testator, and therefore under the method of computation provided by the statute of distribution of the state of South Carolina, Code of 1932, § 8906, par. 6, as related to testator in the fifth degree.

The Savannah claimants: Frances Richardson Clark and Florence Richardson Bruner, claiming as grandchildren of the grandmother of testator in the maternal line, and therefore, as computed by the statutory provision, as related to testator in the fourth degree; and William F. Benet, as related in the fifth degree, whose claim has been formally withdrawn.

The Irish or Macosquin claimants: Mary Jane Cole et. al and Connelly L. Smith et. al, claiming as grandchildren of the alleged paternal grandparents of testator and as related under the statute in the fourth degree.

I use the words "alleged paternal grandparents" with reference to the Irish claimants because their rights depend upon the establishing of that relationship, whereas the Charleston and Savannah claimants allege relationship through the unquestioned maternal line.

Findings of Fact as to Family History of

Testator and Family Traditions.

John Campbell (hereinafter referred to as John Campbell of Charleston) was born in Dublin, Ireland, in 1815, emigrated to Charleston from Dublin by way of Philadelphia at the age of 15 years (about 1830), was married to Eleanor Roberts, daughter of Albert J. Roberts and his wife, Martha Art Roberts, and died in the city of Charleston on or about the 6th day of November, 1854.

He was survived by his widow, who died in the city of Charleston on the 26th day of May, 1895; by a son John Richardson Campbell (Testator), who was born in 1844, was never married, and who died on the 19th day of July, 1930; by a son Francis V. Campbell, born 1845 and died in Charleston in 1880; by a posthumous son Theodore, born in 1855, and who died in Charleston in 1878; a daughter Eleanor Sarah Campbell, born in 1850, died in the same year as her father, 1854.

The sons Francis and Theodore never married, and both died without issue.

The family residence then and up to the death of John Richardson Campbell, testator, was on Church street, in the city of Charleston, between Atlantic and Water streets, and was never changed.

John Campbell of Charleston conducted a ship supply business and at one time was engaged in the manufacture of pants. For his family he appears to have made substantial testamentary provision by the terms of his will, duly admitted to probate in the probate court for Charleston county, a certified copy of which is in evidence. Therein he makes substantial provision "for my friend and relative Captain John K. Richardson of Savannah," and further provides an annuity "for my widowed sister Mrs. Ann Welch of Manchester, England," which annuity was paid until the death of his sister in 1871, as appears from copies of executor's accounts in evidence.

His widow, Eleanor Roberts Campbell, had with her at the family residence on Church street, after the death of her husband, her son Francis, who died at the age of 30 years, her son Theodore, who died at the age of 23, and was survived at her death in 1895 by the testator, then 51 years of age, and also a member of the household.

This family record is sufficient to justify a conclusion that collectively at times during this period of family life they recalled memories of the father and discussed his origin and connections, and that the only known facts as to him were the place and date of his birth and of his arrival in America, and is further sufficient to justify the conclusion that when testator, having so lived with his mother and brothers after his father's death, made comparatively recent efforts to locate his next of kin on his father's side, if any, as testified to, without result, he had exhausted his mother's knowledge of the subject before her death.

These facts, dates, and ages are significant in the consideration of matters hereinafter covered.

Charleston Claimants Related to Testator on

Mother's Side in Fifth Degree.

Albert J. Roberts, brother of testator's mother, Eleanor Roberts Campbell, married Agnes Ainesbury. Their daughter, Mary Eleanor Roberts, married Captain G. H. Hopkins, and the defendant claimant Arthur Drummond Hopkins is the sole survivor of the issue of that marriage. Their son, Albert J Roberts, 3d, married Ida Ham, and the defendant claimants Albert J. Roberts and Lawrence Roberts are the surviving children of that...