Clarke v. Clarke

• Decision Date: 18 March 1896
• Citation: 46 S.C. 230,24 S.E. 202
• Parties: CLARKE. v. CLARKE.
• Court: South Carolina Supreme Court

24 S.E. 202

46 S.C. 230

CLARKE.

v.CLARKE.

Supreme Court of South Carolina.

March 18, 1896.

Will—Construction—Evidence—Equitable Conversion.

1. Testimony as to the intention of a testatrix to remove the situs of her property from one state to another, or of her belief as to the division that would be made of her property under the will in case of the death of a beneficiary, no such contingency being provided for in the will, is inadmissible in an action for construction of her will.

2. A will gave the residue of the property of the testatrix to her husband and children, to be shared equally between them, her husband to hold the shares of the children in trust until their marriage or arrival at a certain age, and then to "pay over" "the whole sum." The testatrix left, surviving her, two infant daughters, one of whom died soon after the mother. Testatrix and her family were domiciled in South Carolina, but her property consisted largely of land situated in three ether states, whose laws as to the descent of property of a deceased child were diverse. No express authority was given her husband to sell land for any purpose, though it was necessary to do so for the payment of debts and bequests. Held, that the words used and the express provision that the residuary beneficiaries should share equally evidenced" an intention on the part of the testatrix that her estate should be converted into money, which worked an equitable conversion.

Appeal from common pleas circuit court of Richland county; D. A. Townsend, Judge.

Action by Henry P. Clarke, as executor of the will of Julia H. Clarke, deceased, and as trustee thereunder of Nancy B. Clarke, his infant daughter, against Nancy B. Clarke, to obtain a construction of the will. From the decree, the guardian ad litem of the defendant appeals. Affirmed.

The following are the decree of Circuit Judge Townsend, and the exceptions referred to in the opinion:

Decree.

"This cause was heard by me while holding the circuit court for the Fifth circuit, presiding at Edgefield, at my chambers, by the written consent of the attorneys of the parties, and W. G. Childs, the guardian ad litem of the defendant, an infant (Rev. St. §§ 2247-2249; Code, § 144, as amended by Acts Assem. Dec. 24, 1894; 21 St. at Large, p. 793), upon the complaint, answer, and evidence appended.

"Under my apprehension of the principles announced in Wig. Wills, p. 12, Prop. v. pi. 17, p. pi. 76, p. 82, pl. 104, Rosborough v. Hemphill, 5 Rich. Eq. 105, and Laurens v. Read, 14 Rich. Eq. 268, 269, I hold those portions of the testimony objected to by defendant's counsel admissible, to wit: 'Mrs. Clarke's intention was to convert what she might receive under the will [of P. T. Barnum] into money, and invest it in South Carolina. Her reasons for this were that in the North and West she would have to have her property, if there, managed by agents, and would receive a less rate of interest than that which ruled in the South. In the South she would save expenses and commissions of agents, and could manage or supervise the management personally, besides obtaining higher rates of interest. * * * In the event of any of the beneficiaries under her will dying intestate, Mrs. Clarke believed that the property of such beneficiary would be distributable under the South Carolina laws for the distribution of intestate estates.' While this ruling is in harmony with my subsequent findings, still these latter are made independently of, and without aid from, the testimony objected to, and I would make the same findings even had I held said testimony inadmissible, and excluded it

"I find that the allegations of fact in the complaint are each and every one of them true. They have been proved by the testimony.

"I further find: (1) That the value of the available personal estate of which the testatrix, Mrs. Clarke, died possessed, was $825.25. (2) That the debts owed by her at the time of her decease amounted to about $30,000. (3) That it would require about $35,000 to raise the sums necessitated by the provisions in her will in favor of S. H. Hurd, her father, Mrs. Laura Sherwood, and Miss Agnes C. Patterson. And (4) that it was the intention of the testatrix, apparent from the words of her will, that such portion of the rest, residue, and remainder of her estate as might consist of realty should not pass as such into the possession of her huband and children, but should be converted into money, and pass into their possession as money in equal shares, they taking per capita.

"I will briefly state the principles of law which, taken along with the patent facts in the case, control me in making this finding. 'Wherever there is an absolute necessity to sell in order to execute the will, or wherever there is such a blending of the real and personal estate by a testator in his will as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the said fund as money, an intent to convert will be implied, and conversion is always a question of intent' Among the many authorities in support of this, suffice it to refer, among text-books, to Bisp. Eq. 311 et seq, and, among decided cases, to Hunt's Appeals, 105 Pa. St. 128, 141, and cases which have followed in its wake; inter alia: Appeal of Paist (Pa. Sup.) 17 Atl. 6; In re Marshall's Estate (Pa. Sup.) 23 Atl. 391; and the early leading cases of Fletcher v. Ashburner, 1 Brown, Ch. 497, and the English and American notes thereto, 1 White & T. Lead. Cas. Eq. pt. 2. In the case at bar all these principles which, separately mark conversion unite. To raise the $65,000 necessary to pay the debts of testatrix, and to make the provisions required by the will of testatrix for her father, S. H. Hurd, Mrs. Sherwood, and Miss Patterson, there is an absolute necessity to sell to execute the will. That there is such a blending of the real and personalestate by the testatrix in her will as clearly to show that she intended to create a fund out of both real and personal estate, and as to the effect, in the connection used, of the words 'rest, residue, and remainder, ' see cases already cited, and, inter alia, Jaudon v. Duck-er, 27 S. C. 295, 3 S. E. 465; Moore v. Davidson, 22 S. C. 93; Byam v. Munton, 1 Russ. & M. 503. That the shares of the daughters were to go into their hands as money is put beyond question by the use of the words "pay the sum." U. S. v. Van Auken, 96 U. S. 360; Rap. & L. Law Diet. 941; Delaneld v. Barlow, 107 N. Y. 535, 14 N. E. 498; Cherry v. Greene, 115, 111, 591, 4 N. E. 257; Going v. Emery, 16 Pick. 112; Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, and 50 N. W. 1103; Dodge v. Pond, 23 N. Y. 69; Belcher v. Belcher, 38 N. J. Eq. 126. If each of the children was to be paid a sum in money, and the husband took the same share, he must take his share in money, on the perfect and complete equality scheme of the will, it would seem. Mire-house v. Scaife, 2 Mylne & C. 707, 708; Given v. Hilton, 95 U. S. 591. 'The inquiry, ' says Adams' Equity (page 139), 'is whether the effective trusts do or do not require the conversion to be made.' Here the will and facts show that they do. The laws of the devolution of real estate of intestates being different in the different states where testatrix's various parcels of real estate lay, it can only be by the blending into one fund as personalty of the realty and personalty, that the complete and perfect equality contemplated and ordered by the will can possibly go into effect, as to the realty which the deceased daughter might have received had she lived. If this passes through her as realty, when it does come into possession of her heirs according to the lex rei sitae of the various states, it would work an utter subversion of the equality scheme between husband and children, the prominent characteristic of the will. To effectuate this main intent, conversion, power of sale, or any other power necessary will be implied. Penfield v. Tower (N. D.) 46 N. W. 413. In the construction of a will, the intention, whenever it can be legally ascertained, is to govern, and all the rules of construction serve but to attain that end. Fronty v. Fronty's Ex'rs, Bailey, Eq. 520. The plaintiff has come properly into the court of equity to obtain its judgment for his guide in accordance with his 'unquestionable right' (Brown v. M'Donald, 1 Hill, Eq. 300); and to the court of the domicile of the testatrix, the proper one to be resorted to (Am. & Eng. Enc. Law, 635 et seq., and notes).

"It is therefore ordered, adjudged, and decreed that the will of the testatrix, Julia H. Clarke, worked an equitable conversion into personalty, at the time of her death, of all her real estate, of whatsoever description, and wheresoever situated; and that the plaintiff, as executor, receive, administer, and account for the same as personalty; and that he is by the said will authorized and empowered to sell and convey the same for the purpose of executing said will; and that he have leave to apply for further orders and directions upon the foot of this decree."

Exceptions.

"(1) Because his honor overruled defendant's objection to the testimony of the witness Henry P. Clarke, as follows, to wit: 'Mrs. Clarke's intention was to convert what she might receive under the will [of P. T. Barnum] into money, and invest it in South Carolina. Her reasons for this were that in the North and West she would have to have her property, if there, managed by agents, and would receive a less rate of interest than that which ruled in the South. In the South she would save expenses and commissions of agents, and could manage or supervise the management personally, besides obtaining higher rates of interest. * * * In the event of any of the beneficiaries under her will dying intestate, Mrs. Clarke believed that the property of such beneficiary would be distributable under the South Carolina laws for the distribution of intestate estates.' (2) Because he found as a fact 'that...