Gourdin v. Shrewsbury

• Decision Date: 13 April 1878
• Docket Number: CASE No. 590.
• Citation: 11 S.C. 1
• Parties: GOURDIN ET AL., EXECUTORS OF MRS. MOULTRIE, v. EDWARD C. SHREWSBURY, J. B. ADGER AND WIFE, MRS. A. H. SMITH AND MRS. ANNA M. BROWN, ET AL.
• Court: South Carolina Supreme Court

11 S.C. 1

GOURDIN ET AL., EXECUTORS OF MRS. MOULTRIE,

v.EDWARD C. SHREWSBURY, J. B. ADGER AND WIFE, MRS. A. H. SMITH AND MRS. ANNA M. BROWN, ET AL.

CASE No. 590.

Supreme Court of South Carolina.

Apr. 13th, 1878.

A testator bequeathed and devised his residuary estate to his executors to sell and re-invest proceeds in stock, which stock was given to testator's two daughters, C. and L., during their natural life, and the share of the daughter first dying was to go to her surviving children, their heirs, &c.; but if such daughter first dying left no child surviving, but a husband surviving, then “said husband shall have such a proportion thereof as the law gives of the wife's estate in case of intestacy under the legislature of this state,” and the remainder to the surviving sister, her heirs, &c., forever.And upon the death of the surviving sister“the stock and property hereby immediately bequeathed to such survivor, or which she may take at the death of her sister” was to go to her surviving children, their heirs, &c.; but if she left “no child living at her death, and shall leave a husband surviving her, then the husband shall have such a proportion of the said stock and property as the law gives of the wife's estate in case of intestacy under the act of the legislature,” and remainder to child or children of pre-deceased sister, if any, then living, “and if there be no child of her deceased sister, then the said remainder shall go to my legal representatives in fee simple.”

C. died first, leaving a husband surviving but no children, and half of the property given to C. by the words above recited, passed to L., the surviving sister.Afterwards L. died without issue and left no husband surviving.Held-

1.That the property received by L. immediately from her father's estate under the residuary clause of his will, passed at L.'s death to the “legal representatives” of testator.

2.That the one-half of C.'s share of the stock and property, which passed to L. after C.'s death under the directions of testator's will, passed at L.'s death to testator's “legal representatives” under the terms of this will.

3.That “legal representatives,” as used in this will, meant such persons as answered the description of legal representatives of testator at the time of the happening of the contingency that vested the estate; and therefore C. and L. having died before such vesting, their legatees and representatives were excluded.

Before REED, J., Charleston, March, 1875.

Stephen Shrewsbury died in 1815, leaving of force a last will, which was admitted to probate in the same year.That clause of his will which the court construes in this case, is set out in full in the Circuit decree and again in the opinion of the Chief Justice.

At the time of his death the testator left surviving him two daughters, Caroline O., (afterwards Mrs. Dickinson,) and Sarah Louisa, (afterwards Mrs. Dr. Moultrie,) and two brothers, Edward and Jeremiah, and one sister, Mary Rogers.Caroline O. Dickinson died before her husband, in 1833, without issue, and one-half of her property was transferred to her husband, and one-half to the trustees of her sister, Sarah Louisa Moultrie, under the will of her father and her marriage settlement.Sarah Louisa Moultrie survived her husband and died without issue in 1874, and leaving of force a last will and testament, whereby, after some trifling legacies, she gave her property to Mrs. Sarah Lee.Mrs. Lee claimed the property under the will of Mrs. Moultrie, as Mrs. Moultrie's absolute property.Mrs. Dickinson's administrator claimed that the testator died intestate as to the remainder of that portion which passed immediately to Mrs. Moultrie under testator's will, after the determination of her life estate therein; and that such intestate remainder vested at testator's death in his two daughters.

Edward Shrewsbury, the brother, died before Mrs. Moultrie, and his children, who were alive at the death of Mrs. Moultrie, are the defendants, Edward C. Shrewsbury, Anna H. Smith and Elizabeth K. Adger.Mrs. Rogers died before Mrs. Moultrie, and her child, who survived Mrs. Moultrie, is the defendant, Anna H. Brown.And the defendants, Edward C. Shrewsbury, Anna H. Smith, Elizabeth K. Adger and Anna H. Brown, claim to be the only “legal representatives” of testator.

Jeremiah Shrewsbury, the brother, had one daughter and one son; but all died before Mrs. Moultrie.This son and this daughter left issue who survived Mrs. Moultrie, but being grand nieces and nephews, are not parties in this action and have filed no claim.

The decree of the Circuit judge is as follows:

DECREE.

Stephen Shrewsbury died in 1815, leaving of force his will, which contains the following residuary clause: “All the rest, residue and remainder of my estate, of what nature or kind soever and wheresoever the same may be, I give, devise and bequeath unto my executors, hereinafter named, or to such of them as shall qualify and act under this will, and to the survivor of them, his heirs, executors, administrators and assigns forever, in trust, nevertheless, to sell and dispose of the same, except as hereinafter excepted, for cash or credit, and on such terms as they may deem best, and to invest the proceeds of such sale in stock of the United States, stock of this state, or any bank stock of this state, which said stock of the United States, stock of this state, or bank stock of any bank in this state, I give, devise and bequeath to my dearly beloved daughters, Louisa Shrewsbury and Caroline Shrewsbury, share and share alike, to them and each of them during the term of their natural life, and from and after the death of either the said Louisa or Caroline, then if my daughter aforesaid first dying shall leave a child or children living at her death, I give, devise and bequeath her share of the stock aforesaid to such child or children, his, her or their heirs, executors, administrators and assigns forever, but if she shall have no child living at her death, but a husband surviving her, then my will is that her said husband shall have such a proportion thereof as the law gives of the wife's estate in case of intestacy, under the act of the legislature of this state, and the remainder I give to her sister, her heirs, executors, administrators and assigns forever.

“And it is further my will, that at the death of the survivor of my said daughters, Louisa and Caroline, the stock and property hereby immediately bequeathed to such survivor, or which she may take at the death of her sister, shall go to such child or children as she may leave living at her death, his, her, or their heirs, executors, administrators, or assigns forever.But if she shall leave no child living at her death, and shall leave a husband surviving her, then the husband shall have such a proportion of the said stock and property as the law gives of the wife's estate in case of intestacy, under the act of the legislature, and the remainder shall go to the child or children of her deceased sister, if any be living at the death of my said daughter so surviving as aforesaid, his, her, or their heirs, executors, administrators, or assigns forever, and if there be no child of her deceased sister, then the said remainder shall go to my legal representatives in fee simple.

And I do hereby empower my executors, or such of them as shall qualify, to make good and sufficient titles to all purchasers of the property or estate sold under this will.”

At his death the testator left two daughters as his sole heirs and next of kin-Sarah Louisa and Caroline.Caroline (afterwards Mrs. Jeremiah Dickinson) died in 1833, before her husband, and under the residuary clause quoted, and her marriage settlement, one-half of her property was transferred to her husband, and one-half to the trustees of her sister.Sarah Louisa married Dr. James Moultrie, in 1818, and, having survived him, died without issue in 1874.The property she took under the above residuary clause was settled on her on the terms of the will, and that which she took under her mother's settlement, on such terms as to give her an absolute estate in case she died without issue living at her death and surviving her husband.The part she derived from her sister is not embraced in the settlement.

At his death the testator left, also, two brothers and one sister.These died before Mrs. Moultrie, and their children (the nephews and nieces of the testator) who were alive at her death, claim the property derived by Mrs. Moultrie from her father, as the testator's legal representatives and next of kin at the death of Mrs. Moultrie, to the exclusion of Mrs. Moultrie's estate, and of the testator's great nephews and great nieces.

The executors of Dr. James Moultrie and his legatees are parties to the suit.

The life estates given by the will of Stephen Shrewsbury to his daughters, Louisa and Caroline, were to vest in remainder in the “legal representatives” of the testator on the happening of two contingencies as to each of said daughters, to wit, dying without issue and leaving a husband surviving them.With Caroline both these contingencies happened, and her share of the estate, therefore, became vested.On her death without issue, but leaving a husband surviving her, such portion of her estate as the statute of distributions gave him went to her husband, and the other part to her surviving sister, “her heirs, executors, administrators and assigns forever,” under the will of her father, and following the statute of distributions.

With Louisa (Mrs. Moultrie)the case was different.She died without issue, but also without leaving a husband surviving her.Only one of the two contingencies, on which the estate given her for life by her father, would have vested in the remaindermen having happened, she took that portion of her estate derived immediately from him, not under the will, but as the portion of the estate which came to her as his...