Clyburn v. Reynolds
| Decision Date | 08 July 1889 |
| Citation | 9 S.E. 973,31 S.C. 91 |
| Parties | CLYBURN v. REYNOLDS et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Kershaw county WITHERSPOON, Judge.
James Chesnut, the elder, styled in his last will and testament under which this litigation has arisen, "James Chesnut of Mulberry," died 17th February, 1866, having executed his said will 16th February, 1864. By this will James Chesnut, Jr., his son, and David R. Williams, a grandson, were appointed executors, and Mrs. Mary Chesnut, his wife, was appointed executrix thereof. Mrs. Mary Chesnut, his wife, predeceased him, leaving a last will and testament, duly executed, dated 11th March, 1848, one codicil dated 27th July, 1853, and one dated ___ day of ___, 1858, and of which James Chesnut, the elder, her husband, and James Chesnut, Jr., her son, were appointed executors. James Chesnut, Jr., became the sole qualified executor of the will of James Chesnut, the elder, and also of the will of Mrs. Mary Chesnut, both of which were duly admitted to probate. By the will of James Chesnut, the elder, a legacy of $12,000, and regarded by the testator as a debt due by him in consideration of some property of his wife which had come to his hands, and in lieu of dower, was given to his wife, and in case she should predecease him the said legacy was made subject to such disposition as she might make by will, or instrument in the nature of a will. The property of James Chesnut, the elder, consisted of large sums due him, and other assets, but mainly of estates in lands and slaves, (some 400 in number,) with such live-stock, provisions, and other personal property as were necessary and proper for the successful management of such estates. The will was long and complicated in its provisions, and was rendered especially difficult of administration inconsequence of the fact that, between the time when the will was executed and the death of the testator, the emancipation of the slaves had taken place, and the scheme of the will had thereby become impracticable. It became necessary to invoke the aid of the courts to adjust the rights of the parties to the new state of things growing out of the loss of property in the slaves, the insolvency of persons who were largely indebted to the testator, and whose fortunes had also perished in the general derangement of values which followed the civil war. On 23d February, 1867, a bill in equity was filed by James Chesnut, Jr., the executor, in which all the parties then in being, who were then, by any possibility, interested under the provisions of this will, were named as parties defendant. Two creditors were also named as parties defendant to-wit: Lynch H. Deas, in his own right, and William Wallace as administrator of William C. Workman. The purpose for which they were brought in will be hereafter stated.
The testator, so far as will be necessary to state here, devised and bequeathed as follows: (1) Two tracts of land on "Jumping Gully Creek" to his executors and executrix in trust for his two daughters, Mary C. Reynolds and Sarah Chesnut, and his two grand-daughters, Mary C. Grant and Harriet S.C. Grant. (2) A parcel of land known as "Bloomsberry" to his daughter Sarah Chesnut. (3) A tract of land known as "Sanders Creek" to his grandson John Chesnut. (4 a) To his wife, Mary Chesnut, for life four (4) plantations,--"$=IBelmont and Town Creek" and "Mulberry and Sandy Hill,"--with the slaves, live stock, provisions, and so forth on them, and called his "planting interest." (b) He charged on the income of said "planting interest" certain annuities or annual payments in favor of Mary C. Reynolds, Sarah Chesnut, his two daughters, and Mary C. Grant and Harriet S.C. Grant, two granddaughters, and also provided as follows: "Should my wife die before my debts [including therein the legacy of $12,000 to her and the interest thereon] shall have been fully paid and satisfied, it is my will and desire, and I devise accordingly, that my whole 'planting interest' shall remain in the hands of my executors to be used and employed by them for the satisfaction of said debts and legacy." (c) Subject to this provision he devised the plantations known as "Belmont and Town Creek" to his two daughters, Mary C. Reynolds and Sarah Chesnut, and to his two granddaughters, Mary C. Grant and Harriet S.C. Grant, under certain trusts, and with remainders over. (d) Subject to the same provision he gave to his son, James Chesnut, Jr., for life the plantations known as "Mulberry and Sandy Hill," and at his death to his issue, and in default of issue subject to his appointment by will in favor of one of the male descendants of the testator, and, in default of such appointment, then to the children and grandchildren of testator then living. There is also a power of appointment in the twentieth clause of the will confined to one of the testator's "grandsons bearing the name of Chesnut," and to which we will hereafter refer. (5) Testator in his will gave to the children of a deceased son, John Chesnut, a "bond" of James Chesnut, Jr., for $16,000, secured by a mortgage of "The Hermitage, Camden Mills, and Pinetree plantations," which he had conveyed to his said son, James Chesnut, Jr., in his life-time. (6) Testator directs that certain interests in lands in Pennsylvania be sold, and the proceeds divided among his children and grandchildren. (7) There are sundry small specific and pecuniary legacies to different persons of not much importance. (8) Testator gives a legacy of $5,000 to his grandchildren Mary S.C. Witherspoon and David R. Williams, to be paid out of debts due testator in the west. (9) Testator directs that all money due to him on account of debts due at his death be applied to the payment of his debts and then to the payment of the legacy of $12,000, if not otherwise fully satisfied. (10) Testator, by the tenth clause of his will, gives all other tracts of land, not hereinbefore specifically devised, to his son, James Chesnut, Jr., and his heirs. (11) And the thirty-third clause of the will he gives all the rest and residue of his estate, real and personal, to his children and grandchildren therein named. This brief statement of the provisions of the will is, perhaps, sufficient for the present purpose.
The specific purpose for which Deas and Wallace, the two creditors, were made parties, was to have an adjudication of the value of their claims in good money, they having been created during the war, and in consideration, as alleged, of 4 per cent. certificates borrowed by testator for the payment of taxes. They were not called in as representatives of a class, as is usually done in a bill to marshal the assets of an estate which is insolvent. Other creditors were not called in, and the bill expressly states that there is "no ground upon which to invoke the restraining process of this court, as the estate is abundantly good for all liabilities of testator." It appears that the claim of Deas has not been paid, but the claim of Wallace seems to have been paid, as no mention is made of it in the reports of the master.
It appears from an examination of the bill that its scope and purpose were: (1) To determine the value in good money of the claims of Deas and Wallace, administrators, two creditors who were made defendants; (2) to obtain an order of the court for leave to carry out a proposed compromise of a large debt due by parties residing in Mississippi; (3) to obtain a construction of the court of the power of appointments given in the sixth and twentieth clauses of the will; (4) to subject the choses in action, stocks, etc., and the Mississippi lands (to be taken under the proposed compromise for the Mississippi debts) to the payment of the debts, and the legacy of $12,000, and for an order for the sale of these assets as well as the residuary estate for this purpose; (5) to have an order for the partition of Belmont and Town Creek plantations; (6) for general relief. The nature of this general relief is indicated in the bill in these words: "If the estate was longer to be kept together to meet the debts of the testator, your orator well hopes that by orders herein arrangements may be made to pay the debts, and to assign and allot to each the portions assigned them in the will; but if this cannot be promptly effected he asks the aid of the court herein." Sarah Chesnut, Mary C. Reynolds, and her daughters, Mary R. De Saussure, Emma C. Reynolds, Ellen C. Reynolds, Sally Reynolds, and Esther S. Reynolds, James J. Frierson, and Mary Co., his wife, Harriet C. Stockton and her child, Lucian W. Stockton, and Lynch H. Deas appeared and answered the bill. The bill was taken pro confesso against all the other defendants.
No one has called in question, in this appeal, the regularity of this order pro confesso except David R. Williams who takes the ground that he has never been properly made a party, either as one of the devises under the will or as appointee under the power given in the will to James Chesnut, Jr. The case came before Chancellor W. D. JOHNSON for a hearing, and he rendered a decree in the cause dated 6th March, 1868. Of this decree it is only necessary here to say that the construction put by it on the power of appointments was the one followed by James Chesnut, Jr., in executing that power in favor of David R. Williams, one of the "male descendants" of the testator, and that by it a writ of partition was ordered to be issued, in accordance with the prayer of the bill, to divide "Belmont and Town Creek plantations" among the parties entitled thereto under the will, subject, however, to any claims of the creditors of James Chesnut, the elder, that may not be satisfied out of the portions of the estate first chargeable with...
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