Deleon v. Barrett
| Decision Date | 26 March 1885 |
| Citation | 22 S.C. 412 |
| Parties | DELEON v. BARRETT. |
| Court | South Carolina Supreme Court |
1. On July 11 the Circuit judge ordered that the daily sessions of the court be dispensed with, but the term not to be closed. The clerk of court thereafter opened and adjourned the court every day (Sundays excepted) until September 4, when the judge returned, held court, heard and determined this cause and then adjourned the term sine die . The next succeeding term of court in this county, and the next succeeding court to be held by this judge were after this sine die adjournment. Held , that the case was heard within the term. This case distinguished from Ex parte Lilly , 7 S.C. 373.
2. A testator left certain property to his children and directed a division of his estate among them twenty years after his death, certain real estate devised to be accounted for by them at a valuation fixed in the will. By a codicil, the division was directed to be made at the end of ten years. All the property so given was to be held by his children during life, with contingent remainders over. At the expiration of ten years the executors sought the instruction of the court as to the proper distribution of the estate, all parties in interest, including all contingent remaindermen in esse , being defendants. These defendants agreed upon a proper distribution among the life-tenants and delivery of possession to them, which arrangement was approved and directed by the decree of the court, and on the appeal of some of the executors, the Circuit decree was affirmed.
3. All the contingent remaindermen in esse being before the court, a decree might be made putting the life-tenants into possession of their shares, to be held by them under the limitations of the will; and such decree would be binding upon contingent remaindermen thereafter born.
4. The case of LeRoy v. City Council of Charleston , 20 S.C. 71, explained.
5. The executors appealing in this case should be allowed the expenses of their appeal out of the estate.
Before HUDSON, J., Charleston, September, 1884.
The opinion states the case. The Circuit judge wrote at the foot of his decree, embodying the arrangement agreed upon by the parties, the following memorandum:
I have signed the foregoing decree for the following reasons: 1. Because it carries out the wishes of all the adult beneficiaries under the will of Jacob Barrett, who have propounded it to the court as a family settlement agreed upon among themselves after much consideration. It is pronounced by the executors (who have testified in the cause) to be judicious and to the best interest of all concerned. The master, after full hearing and careful examination of the whole subject, has recommended it in a very elaborate and able report. All the attorneys representing the various parties concur in pronouncing it a prudent, wise, and beneficial arrangement, if legal. In these views I fully concur and feel well satisfied, that in the decree no interest is jeopardized or sacrificed, and that the terms of the will are in no way violated. The changes in the valuations by the testator of the real estate specifically devised are very slight, and only such as are necessary to be made in fairly and impartially equalizing these shares, and this equality the testator requested should be made.
2. Because, under the authority of Bofil v Fisher , 3 Rich. Eq. , 1, and cases therein cited, it is clear that the court has the power to sell the residuary real estate in which contingent remaindermen born, and to be born, have or may have an interest-so as to bar them from ever disturbing the title of the purchasers-and in doing this, and in taking charge of the fund arising therefrom, and administering the same under the terms and limitations of the will, and in accordance with its provisions, there is no right on the part of any of these contingent remaindermen ever thereafter to question this exercise of jurisdiction, save by appeal in due time taken-nor is there the shadow of danger that the executors can ever hereafter be made to suffer for obeying the aforesaid judgment. All apprehensions in this regard are groundless and may at once be laid aside.
3. Because it is entirely unnecessary that I should comply with the request of the counsel of the executors and give interpretation to the entire will. All the issues raised in the pleadings have been adjusted by the beneficiaries, and in such a manner as fully to protect infants and all contingent remaindermen.
Such in brief are my reasons for signing the decree, and are thus partly stated because counsel of the executors preferred that such should be done. All exceptions, therefore, at variance with the terms of the decree, are overruled.
Messrs. Simons & Seigling , for appellants.
Messrs. J. N. Nathans, J. B. Cohen , contra.
The late Jacob Barrett, of Charleston, died in November, 1871, leaving a will and codicil, of which the appellants, and one H. H. DeLeon, were the qualified executors. The testator left, surviving him, his widow, Hetty J. Barrett, and children, Laura L. Levy, Sarah B. Cohen, Eugenia A. Rice, Pauline Dishon, Jacob Barrett, and Mary Beatrice Larendon. His son Isaac did not survive testator, but died before him unmarried, intestate, and without issue.
After specifically devising certain real estate in this state, and also in the states of New York and Georgia, to each of his children, to be charged against them in the final distribution of his estate at valuations fixed in the will, and directing that the executors should set apart a sum sufficient to pay an annuity of $4,000 to his widow, the principal of which, at her death, was to revert to his estate, and be distributable under the provisions of his will respecting the residue of his estate, and also directing that the further sum of $50,000 be set apart to accumulate to be disposed of by his said wife, by her will, to one or more of his children or grandchildren; the testator disposed of the rest and residue of his estate, both real and personal, to his children for life, and from and after their death to their children; providing that if any child or children should die leaving no child or children surviving him or her, or in case any child or children so left surviving should die before attaining the age of twenty-one or marriage, the property so devised to such child or children should revert to his estate; and providing further, that the child or children of either of his children, who may have died previous to the time of distribution fixed in the will, should stand in the place of such deceased parent.
The testator further directed that his residuary estate should be " kept together until twenty years after his death, and then at that tlme that the final division should take place, according to the tenor and meaning of his will, among his surviving children," & c., which period was changed to ten years by the codicil, in which the testator also directed as follows: " I do further direct that the portion of my estate left to all of my children, shall be subject to the following trusts, to wit: in trust to them for life, and after their death to such children as they may leave surviving; the child or children of any deceased child to take such share as his or her parent would have taken if alive, and in case there shall be no such child or children, grandchild or grandchildren, then the same to revert to my estate, and become devisable as a part of the residue of my estate," & c.
Soon after the testator's death, Jacob Barrett, Laura L. Levy, and his other children, filed a complaint against the executors, who had qualified, the widow, Hetty J. Barrett, and all the children of testator's children who were then in esse , in which various questions were brought before the court, and after long litigation it was adjudged that Mrs. Laura L. Levy was entitled to two shares under testator's will, and that a certain amount of income should be annually paid by the executors for the maintenance of testator's children and grandchildren. See Levy v. Williams , 4 S.C. 515, 7 Id. , 25, and 9 Id. , 153.
The ten years after his death fixed by the testator for " the final division of his estate" expired November 13, 1881. At that time Mrs. Sarah B. Cohen, one of the testator's daughters, had died, leaving surviving her children, Octavus Cohen, Jacob Barrett Cohen, Joseph Cohen, Abram Cohen, W. C. Cohen, and Sarah Bell Cohen. The plaintiffs, on January 9, 1882, commenced this action. But certain events having occurred after it was filed, which it was necessary to bring to the attention of the court, particularly in reference to the lands of the testator lying in the State of New York, the executors filed an amended and supplemental complaint on November 26, 1883, stating the condition of the estate, and praying for instructions from the court: " That said estate should be divided and settled, and the same paid over to such persons as are entitled to the same under the direction and order of the court, and that upon such payment and settlement, the said plaintiffs be discharged from any further accountability as executors of the same." They made defendants, by regular and proper service, all the children and grandchildren of the testator, and also the infant, Barrett Foster Cohen, a grandchild of testator's daughter, Sarah B. Cohen, thus including all the issue of the testator now in existence. The numerous defendants, many of them minors, filed answers making various and embarrassing questions.
An order of reference was made to Master Hanckel, submitting among other things, a proposed scheme of a settlement and decree at the instance of the parties. The master took testimony, heard arguments,...
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