Glover v. Bradley

• Decision Date: 02 May 1916
• Docket Number: 1406.
• Citation: 233 F. 721
• Parties: GLOVER et al. v. BRADLEY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

233 F. 721

GLOVER et al. v. BRADLEY et al.

No. 1406.

United States Court of Appeals, Fourth Circuit.

May 2, 1916

W. B Gruber, of Walterboro, S.C., and James Simons, of Charleston S.C. (Howell & Gruber, and Fishburne & Fishburne, all of Walterboro, S.C., Edward W. Hughes, of Charleston, S.C., and Claude E. Sawyer, of Aiken, S.C., on the brief), for appellants.

George F. Von Kolnitz, of Charleston, S.C., George F. Von Kolnitz Jr., of Spartanburg, S.C., and J. M. Moorer, of Walterboro S.C. (Padgett & Moorer, of Walterboro, S.C., on the brief), for appellees.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

WOODS Circuit Judge.

The complainants, contingent remaindermen under the will of Dr. John O. Glover, late of Colleton county, S.C., brought this suit to have declared invalid as a cloud upon their title the claim of Peter B. Bradley and Robert S. Bradley to 3,230 acres of land devised by Dr. Glover. The defense is that W. K. Ryan, trustee, under whom the Bradleys claim, acquired the interest of all the devisees under the will, including contingent remaindermen, by virtue of proceedings in the court of common pleas for Colleton county to which the contingent remaindermen were parties. The District Court, holding that the complainants were barred by the proceedings and that defendants had a good title against them, dismissed the bill.

The clauses of the will pertinent to the issue are as follows:

'Fourth. All the rest and residue of my estate of every kind and description, and wherever the same may be I give, devise, and bequeath to my wife, Margaret A. Glover, and my children, James Bowman Glover, Annie Eliza Glover, Catharine Clara Paul Glover, Mary Maria Glover, and Florence Spencer Glover and any other child or children, that I may leave living at my death, to be equally divided among them share and share alike equally; the issue of any deceased child, that may have died in the meantime leaving issue then living, to represent the ancestor and take per stirpes.

'Fifth. The property hereby given to my daughters, I give, devise, and bequeath unto them and each of them, during the natural life of each, and no longer, absolutely free from the debts, contracts and engagements of any husband either of them may marry, and from and after the death of either of my daughters, I give, devise and bequeath, the property given to such daughter, to be equally divided among her issue then living, the issue of any deceased child of my said daughter that may have died in the meantime, leaving issue, then living, to represent the ancestor, and take per stirpes. But should either of my aforesaid children, die without leaving issue then living, then and in that case, I give, devise and bequeath the property hereby given to such, to be equally divided, among my surviving children, the issue of any deceased child then living to represent the parent in said partition and take per stirpes.

'Sixth. I will and direct that all of my estate remaining after payment of debts be kept together under the management of my wife, Margaret A. Glover, subject nevertheless, to the supervision of my executors, and the net income thereof, appropriated, to the maintenance and education of my children and support of my wife, and I hereby give to and confer on my executors, ample power to control and manage my estate, whenever in their opinion it becomes necessary for them to do so, to preserve the property, and to maintain and educate my children and support my wife: Provided always, nevertheless, that as each of my said children arrives at the age of twenty-one years, or marries, that then my said executors shall deliver their portion hereby given to such child, to him or her, as the case may be. * * * '

The widow, having elected to take dower, forfeited under the terms of the will the devise to her, and the property covered by it passed to the children of the testator in the same proportion and under the same limitations as the direct devises to them.

No question is made of the correctness of the finding of the District Court that each daughter of the testator took an estate for life in the undivided interest devised in paragraph 4 of the will, with a contingent remainder to her issue living at her death, or in default of issue to the remaining children of the testator. The complainants as children of the daughters are therefore contingent remaindermen.

On January 29, 1879, James B. Glover, a son, and Annie E. V. Glover, a daughter of testator, brought a suit in the court of common pleas against the other daughters for partition and sale of 4,527 acres of land. The complaint alleged that the children of Dr. Glover were 'entitled to one undivided fifth each in fee in said estate,' that the debts were inconsiderable, and that the land was yielding no income. Although there were living children of the daughters, none of them were made parties. The allegation in the complaint that the daughters took a fee under the will indicated that it was intended to sell the fee and that it was supposed to be unnecessary to make the grandchildren of testator parties. The cause proceeded regularly, with the result that at a sale made by the order of the court the land was purchased by B. F. Davis for $7,350. The purchaser having failed to comply, James S. Glover purchased it at a resale ordered by the court for $2,500. Title was made by the sheriff December 14, 1880, and the sale was confirmed November 18, 1881, but the disposition of the purchase money does not appear. On the day of the confirmation James S. Glover conveyed to W. K. Ryan, trustee, all of his purchase except two tracts, aggregating in area 327 acres, for the consideration of $9,900. Through successive deeds the title of James S. Glover under the judicial sale was finally acquired by Wm. L. Bradley by deed from the Rose Phosphate Company dated May 4, 1887, for the expressed consideration of $24,000. The defendants Peter B. Bradley and Robert S. Bradley acquired the title of Wm. L. Bradley by devise. It is evident that, if there had been nothing else, the Bradleys would own only the life estate of the children of Dr. Glover, subject to the rights of the complainants as contingent remaindermen.

This brings us to the consideration of the effect of the orders of the court in a later suit. On December 1, 1881, Henry C. Glover and James S. Glover, as executors of the will of John O. Glover, brought suit against the children, life tenants, and the grandchildren, contingent remaindermen, under the will of Dr. Glover. The scope of the suit as indicated by the complaint is important in determining the effect of the orders of the court made in this cause. The complaint sets out the former suit for partition; the sale of the land for $2,500; the insufficiency of the fund to pay the debts of the estate amounting to $3,500; the sale by James S. Glover of the land to W. K. Ryan, trustee, for $9,900, and his desire to turn over the profit on the sale to the legatees and devisees under the will of Dr. Glover, after the payment of debts, reasonable compensation to him, and the expenses of the administration; the embarrassment of the executors in the distribution of the surplus, 'the said will being uncertain and seemingly contradictory in its terms;' the right of the executors to the aid of the court in interpreting the will and deciding whether the children of testator are entitled to have their portions turned over to them on their arriving at the age of 21 years, or marrying, or whether there is a limitation over to their issue. The prayer was as follows:

'Wherefore plaintiffs demand the judgment of this honorable court, whether they can deliver the portions to the children of testator, on their arriving at the age of 21 years, or marrying, or whether there is a limitation over to their issue, and for such other relief as is stated in said complaint as may be just.'

The infant remaindermen answered by guardian ad litem, submitting their rights to the court. The son and daughters of testator alleged in their answers that, having arrived at the age of 21 years, they were entitled to have the funds in the hands of the executors paid over to them under the sixth clause of the will, which provided:

'That as each of my said children arrives at the age of twenty-one years, or marries, that then my said executors shall deliver the portion hereby given to such child to him or her as the case may be. * * * '

The special master to whom the issues were referred made a report on January 23, 1882, in which he finds that the lands, though previously very valuable, had been rendered almost valueless by the ...