Evans v. Adams, 14277.

• Court: United States State Supreme Court of South Carolina
• Citation: 185 S.E. 57
• Decision Date: 08 April 1936
• Docket Number: No. 14277.,14277.
• Parties: EVANS. v. ADAMS et al.

185 S.E. 57

EVANS.
v.
ADAMS et al.

No. 14277.

Supreme Court of South Carolina.

April 8, 1936.

Appeal from Common Pleas Circuit Court of Lancaster County; A. L. Gaston, Judge.

Suit by Joseph P. Evans against J. Allen Adams, individually and as executor of the will of W. J. Evans, deceased, and others. From an adverse judgment, the plaintiff appeals.

Affirmed.

The order of Judge Gaston, referred to in the opinion, follows:

I heard this case at Chester on August 2, 1935. Counsel for all parties argued the issues most ably and thoroughly. The complaint alleges the death of W. J. Evans on May 14, 1935. He left a will, dated April 3, 1935, and therein disposed of his property as follows:

"Item II. I will, devise, and bequeath to my father, Joseph P. Evans, during his natural life, all the real and personal property which I may have at the time of my death of whatever nature or kind and at the death of my father, Joseph P. Evans, I direct that my estate be disposed of as follows:

[185 S.E. 58]

"Item III. I give, devise, and bequeath to my friend, Hollis L. Hance, whatever indebtedness he may owe me by note or otherwise, and in addition to the foregiveness of the said indebtedness, I will, devise, and bequeath unto the said Hollis L. Hance, the sum of One Hundred and No/100 ($100.00) Dollars, in cash.

"Item IV. I will, devise, and bequeath to Alma Evans, daughter of John Evans of Sydney, Florida, the sum of One Hundred and No/100 ($100.00) Dollars, in cash, the same to be deposited in a National Bank and to be held by said bank in trust at interest until the said Alma Evans reaches the age of twenty-one (21) years.

"Item V. I will, devise and bequeath to my cousin, J. Allen Adams, of Lancaster, S. C, the sum of Five Plundred and No/100 ($500.00) Dollars, in cash."

"Item VI. All the rest and residue of my real and personal estate that may remain after the payment of the legacies above mentioned following the death of my father, Joseph P. Evans, I will, devise and bequeath to the Lancaster Associate Reformed Presbyterian Church, Lancaster, S. C."

"Item VII. I nominate, constitute, and appoint my cousin, J. Allen Adams, of Lancaster, S. C, as executor of this, my last will and testament, and I authorize and direct him to sell my real estate consisting of a tract of land known as the John D. Adams place--lying north of Gills Creek and adjoining lands of N. B. Cousar, Mrs. Maude Adams, and others, containing one hundred and fifty-five and one-half (155½) acres, more or less, and also my house and lot in the Town of Lancaster known as my home place, on West Meeting Street, adjoining lands of A. B. Ferguson, Jr., and Mrs. Ray E. Polliakoff and others, and I give to the said executor full power and authority to execute the necessary deeds of conveyance in connection with sales of said real estate, and for the purpose of paying the bequests above mentioned and in the order named, said sales shall not be made, however, during the lifetime of my father, Joseph P. Evans."

The complaint further sets forth that the plaintiff under the said will is entitled to all of the personal property of the testator, as the absolute owner of the same, after the payment of the debts of the estate. The complaint prays that the court shall construe the will, determine the rights of the parties, and allow plaintiff's attorneys a reasonable fee. An answer was filed by the executor and J. U. Bell, as treasurer of the Lancaster A. R. P. Church. These defendants filed the joint answer by their attorneys. They alleged that the plaintiff has only a life estate in the personal property and the right to the income and use of the same for the term of his natural life; and that under the will the personal property should be held by the executor and the income paid to the life tenant. The answer also claims that the legal title to the personal property vests in the executor until his discharge. The personal assets are listed in the answer as follows:

---------------------------------------------------
                |Cash |$2,400.00|
                |---------------------------------------|---------|
                |Federal Farm Mortgage Bonds |900.00 |
                |---------------------------------------|---------|
                |Postal Savings Deposits....... |400.00 |
                |---------------------------------------|---------|
                |Notes and accounts, estimated.. |400.00 |
                |---------------------------------------|---------|
                |Furniture and other items, appraised at|200.00 |
                |---------------------------------------|---------|
                |Total.................... |$4,300.00|
                ---------------------------------------------------
                

The answer further alleges that the real estate in which the plaintiff has a life interest is unencumbered and the income thereon is about $400 per year; also that the plaintiff is a widower about 83 years of age and very feeble and unable to handle his own affairs; that there is danger of loss of the corpus of the personal property if delivered to him; and that the defendants should be indemnified against loss by a surety bond, if the court determines that the plaintiff is entitled to the possession of the personal property.

The plaintiff contends that the will bequeathes all of the personal property to him as the absolute owner on the grounds: (1) That a limitation of personal property for life with remainder over creates a fee or absolute ownership in the first taker under the law of this state; (2) that the will does not expressly create a life estate to be kept separate and intact and therefore fails to establish a life estate; (3) that the intention of the testator shows his purpose to be that of giving the personal property to his father absolutely and only to limit by will the title to the real estate; (4) that the other legacies are payable out of the proceeds of sale of the real estate and that only the rest of the proceeds of sale thereof are devised in remainder.

I am satisfied that the will creates a life estate only in the personal property for the benefit of the testator's father, who is undoubtedly a very aged man and for whom the testator has made ample and generous provisions as the first object of his solici-

[185 S.E. 59]

tude. After the death of the father, all the property, real and personal, is to be...