Farr v. Gilreath
| Decision Date | 23 October 1885 |
| Citation | 23 S.C. 502 |
| Parties | FARR v. GILREATH. |
| Court | South Carolina Supreme Court |
1. A testator by his will declared: Held , from the intent of the testator and the duties imposed upon the trustee, that the fee in these lots of land was devised directly to the trustee, and that the trust was not executed.
2. The interest here given to testator's " surviving children" was a contingent remainder.
3. Upon the happening of the contingency, the surviving children were not entitled to the land itself, but to " the proceeds of the same." The land then became personalty, and these remaindermen, having no title thereto, could not recover it from one to whom the trustee had conveyed; but if such conveyance was void, they might follow the land, as impressed with a trust, into the hands of the purchaser, and demand a sale, so that they might receive the proceeds.
4. It is the policy of the law to sustain judicial sales when it can be done without violating principle or doing injustice.
5. Contingent remaindermen in esse and within reach are necessary parties to a proceeding to sell the land in which they have such an interest, and if not parties, they are not bound by the judgment. Moseley v. Hankinson (22 S.C. 323) approved, and some points of difference between that case and this stated.
6. The daughter M., a paralytic and childless widow, filed her bill against R., the trustee, to require the sale of this property, the income from which was alleged to be inadequate to her support, and to reinvest the proceeds. The court so ordered, and the trustee sold. Held , that the postponement by testator of the sale until M.'s death being wholly for her benefit, the power of sale given by the will to the trustee might be accelerated by the tenant for life, and she having, by her proceedings in court substantially joined with the trustee in his sale and deed the purchaser took a good title under this power.
7. One of the remaindermen having instituted an action against the trustee to recover a portion of the proceeds of the property so sold, and having received a portion, she thereby elected to confirm the sale.
Before FRASER, J., Greenville, July, 1884.
The case is thus stated by the master:
The master, to whom it was referred to take the testimony in the above entitled action and return the same to the court together with his conclusions of fact therefrom, and also his conclusions of law, with leave to report any special matter, begs leave to report that he has held references and taken the testimony herewith filed, and from the same he respectfully submits the following report. As conclusions of fact, he finds-
1. That Dr. Burwell Chick departed this life in 1847, leaving his last will and testament in full force and effect, in the fourth clause of which he gave to his son, Reuben S. Chick, in trust for his daughter, Maria H. Thompson, among other things, the property in dispute; [1] and in the twelfth clause of his will he says:
2. The said Reuben S. Chick accepted said trust and the real estate mentioned in the fourth clause of said will remained in his possession undisturbed until November 3, 1871, when the said Maria H. Thompson instituted a proceeding in this court against her said trustee, and him only, demanding, for certain reasons therein mentioned, that said real estate, or a portion thereof, be sold. The matter was referred to a special referee, and on the coming in of his report, the court ordered, adjudged, and decreed, that said real estate be sold by said trustee on the terms specified in said decree; and further ordered, that before the first instalment fell due, or before it was collected, that the trustee give a bond in the sum of four thousand dollars to the clerk of this court for the faithful performance of his duties in the discharge of his trust.
3. In pursuance of said decree, the trustee, on March 4, 1872, sold said real estate at public outcry, and on March 22, 1873, filed his bond, duly approved, with the clerk, as required by said decree.
4. At the sale of said real estate, a portion thereof was purchased by one A. L. Herron, who was subsequently adjudged a bankrupt, and the real estate purchased by him was sold by his assignee on January 8, 1877, in three separate parcels, and the lot in controversy was purchased by the defendants, who paid the said assignee for the same.
5. Reuben S. Chick departed this life in 1877, and subsequently thereto Pettus W. Chick was appointed trustee of the said Maria H. Thompson, and assumed charge of the trust estate. The said Pettus W. Chick died, and some time thereafter the said Maria H. Thompson instituted a proceeding in the Court of Common Pleas for Newberry County against Sarah E. Chick, as executrix of Reuben S. Chick, and Betsy Chick, as executrix of Pettus W. Chick, demanding an accounting of them for the trust estate which went into the possession of their respective testators. On hearing the pleading in the said cause, the court, on June 5, 1879, ordered the said Sarah E. Chick to turn over to the master of Newberry County, as receiver, all choses in action and evidences of indebtedness belonging to said trust estate. The complaint in this cause was amended on August 4, 1879, making Wilhelmina B. Chaplin, Louisa V. Farr, and Caroline Hodges, who were the remaindermen, parties defendant. On February 14, 1880, under this proceeding, W. A. McDaniel was appointed trustee of said trust estate, who filed his bond and assumed the duties of trustee in July, 1880. Maria H. Thompson died on August 2, 1882, and Louisa V. Farr was appointed administratrix of her estate, and as such she was, on November 28, 1882, substituted as plaintiff in the case, which is still pending.
6. On October 5, 1880, Louisa V. Farr filed her complaint against Thomas S. Moorman, as executor of Elizabeth D. Chick, deceased (who was executrix of Reuben S. Chick), Wilhelmina B. Chaplin, and others, in which reference is made to the trust estate of Maria H. Thompson, by saying that the estate of Reuben S. Chick is responsible therefor.
7. Under this proceeding, a receiver was appointed for the estate of Reuben S. Chick, who filed a creditor's bill, and an order was passed requiring the creditors of Reuben S. Chick to establish their claims before him as master for this court. In pursuance of this order, W. A. McDaniel, as trustee, presented the claim of the trust estate, but the same has never been fully established, owing to an accounting yet to be had in the case first above mentioned. The suits are still pending.
Out of the proceeds of the sale of the real estate of the said A. L. Herron, bankrupt, his assignee, by order of court, paid over to the executrix of Reuben S. Chick one thousand dollars, and to Messrs. Earle & Blythe, attorneys for Maria H. Thompson, six hundred dollars. He also advanced to the said Maria H. Thompson three hundred and fifty dollars to pay for a lot of land, and took a mortgage thereon to secure the same. He also let her have eighteen 20-100 dollars to pay for sash and blinds for a house built on said lot, and advanced to her in cash fifteen dollars. The balance remaining in his hands as assignee, to wit, seven hundred and thirty-eight 91-100 dollars, he paid over to W. A. McDaniel as trustee, out of which the said trustee paid to Louisa V. Farr, one of the plaintiffs herein, the sum of two hundred and thirty-seven 50-100 dollars, on account of her share in said trust estate, and for which he took two separate receipts. He also paid on account of the burial expense of the said Maria H. Thompson ninety-three 80-100 dollars, which was done at the instance of Louisa V. Farr, and who agreed that if the other parties in interest did not assent to it, she would be responsible for the same. The balance of the money is still in the hands of the said W. A. McDaniel as trustee.
8. When the property was sold by Reuben S. Chick as trustee, that portion of it purchased by the said A. L. Herron was in a dilapidated condition, and one hundred and fifty dollars a year would have been a fair rental for it. After Herron bought, he spent at least one thousand dollars on that portion now owned by the defendant in the way of improvements and thereby improved it considerably, and since it was purchased by the defendant two hundred and fifty dollars a year would be a fair rental for it.
9. The defendant paid a fair price for the property, and thought the title to it was good. He has also improved the property considerably.
10. Reuben S. Chick, Pettus W. Chick, and Maria H. Thompson all died leaving no issue of their bodies, and Louisa V. Farr Wilhelmina B. Chaplin, and Caroline Hodges were the only children of Dr. Burwell Chick who survived Maria H. Thompson. Caroline Hodges has since died leaving no issue of her body, but left her last will and testament, executed in the presence of two subscribing...
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