Forrest v. Jennings

• Decision Date: 11 April 1917
• Docket Number: 9668.
• Citation: 92 S.E. 189,107 S.C. 117
• Parties: FORREST v. JENNINGS.
• Court: South Carolina Supreme Court

92 S.E. 189

107 S.C. 117

FORREST v. JENNINGS.

No. 9668.

Supreme Court of South Carolina

April 11, 1917

Appeal from Common Pleas Circuit Court of Saluda County; Thos. S Sease, Judge.

Action by B. Frank Forrest, as administrator of the estate of W. L Parkman, deceased, against John D. Jennings, in his own right and as administrator with the will annexed de bonis non of the estate of Rosanna Parkman, deceased. Decree for plaintiff, and defendant appeals. Reversed and remanded.

Gary C.J., dissenting.

C. J Ramage, of Saluda, for appellant.

B. W. Crouch and E. W. Able, both of Saluda, for respondent.

WATTS, J.

This is an action against the estate of Rosanna Parkman by creditors of the estate of W. L. Parkman. Mrs. Parkman left her will in due form, and the will is in the following words, which raise the questions to be determined by the court:

"Second. I will, devise and bequeath unto my beloved husband, W. L. Parkman, all my property, real and personal and mixed, that I may own at the time of my death, wherever the same may be situate, for his use, behoof and benefit forever, without any limitation or restrictions of any kind whatever.

Third. In the event that my said husband, W. L. Parkman, shall die seised and possessed of property received from my estate without having made provisions as to who shall receive the same or leaving no specific directions as to what shall be done therewith, I will and devise and bequeath the same unto my nephew, Tom Brown Jennings."

The case was tried by Judge Sease on the agreed facts, and the question was:

"Did the will of Mrs. Parkman cover the debts contracted by her husband?"

Judge Sease found that the will covered the debts contracted by the husband, Parkman. From this decree of his honor the appellant appeals, and alleges error and asks reversal. The appeal raises the sole question: Was his honor in error in so holding? We think his honor was in error.

The second and third clauses of the will are consistent. Under the will he could use and enjoy it or sell it. Under the will he was given the use of the property with power to dispose of it during his life. Failure to sell or dispose of it while he was alive and exercise the power to do so during his life could not defeat the provisions of the will as to where it would go after his death. Then the property went under the terms of the will to the party named therein, and is in no way liable for the debts contracted by the husband in his lifetime. His failure to use the power conferred upon him by the will during his lifetime cannot be extended to pay his debts out of the estate after his death.

The record shows, however, that W. L. Parkman sold some of the real estate in his lifetime, and that the proceeds of the sale are in the hands of defendant. Upon the sale the proceeds became the property of W. L. Parkman and belonged to his estate. Therefore the defendant must account to his administrator therefor.

Judgment reversed, and case remanded for further proceedings not inconsistent with the views herein announced.

HYDRICK, FRASER, and GAGE, JJ., concur.

GARY C.J. (dissenting).

This appeal involves the construction of the following will (omitting the first clause, which merely provides for the payment of debts):

"Second. I will, devise and bequeath unto my beloved husband, W. L. Parkman, all and every property, real and personal and mixed, that I may own at the time of my death, whereever the same may be situate, for his use, behoof and benefit, forever, without any limitation or restrictions of any kind whatever.

Third. In the event that my said husband, W. L. Parkman, shall die seised and possessed of property received from my estate without having made provision as to who shall receive the same or leaving no specific directions as to what shall be done therewith, I will and devise and bequeath the same unto my nephew, Tom Brown Jennings."

The case was heard upon the following agreed statement of facts:

"It is admitted that the claims set out in the complaint are bona fide claims against the estate of W. L. Parkman, deceased, contracted while he was in possession of such property under said will, and that John Jennings, administrator of Rosanna Parkman, received into his hands $______ that had been in the possession of W. L. Parkman, but which money had been derived from the sale of certain real estate of the said Rosanna Parkman, under the power of sale given in her said will to said W. L. Parkman. The question is: Are debts of said W. L. Parkman contracted by him after he came into possession of the property under the will of Rosanna Parkman, and while in possession of such property under said will, charges now against his estate?"

His honor the circuit judge ruled that:

"Debts and administration expenses of W. L. Parkman, deceased, must first be paid out of the property, of which said W. L. Parkman was seised at the time of his death, and any remainder after this to go to Tom Brown Jennings." And the defendant appealed.

The words we have italicized show the testatrix intended that the property should go to Tom Brown Jennings, upon the condition that Parkman failed to dispose thereof by deed,...