Appeal
from common pleas circuit court of Richland county; O. W
Buchanan, Judge.
Action
by Frederick L. Green (as administrator of the estate of
Allen J. Green, deceased, and as administrator of the estate
of Frederick L. Green, deceased, and also in his own right)
William G. Green, G. Washington Pringle, Allen C. Green
Walter G. Green, Sally S. Green, Allen J. Green (of Alabama)
Walter Green, and Martha C. Green against Lucy J. Green,
Halcott P. Green (as trustee), Sally G. Heyward, Lucy P.
Heyward, Nathaniel B. Heyward, Halcott P. Green (as
administrator of the estate of Halcott P. Green, deceased,
and also as administrator of the estate of John S. Green,
deceased, and also in his own right), Allen J. Green (of
South Carolina), Eliza G. Singleton, M. Caroline Jervey,
Walter Izard, Henry Izard, Allen Izard, Izard Heyward, and
Frederick G. De Saussure to declare a trust, etc. From a
judgment sustaining a demurrer to the answer, defendants
other than Frederick G. De Saussure appeal. Affirmed and
remanded.
The
exceptions and grounds of appeal are as follows:
"Defendants
except to the order of Judge Buchanan upon the following
grounds: (1) Because it appears from the pleadings that the
foundation of the plaintiffs' claim and that of the
defendants to the relief sought by them is one and the
same, to wit, the will of Lucy P. Green, deceased, and
hence the defense or counterclaim is a proper one, under
the laws of this state; and the judge erred in not so
holding. (2) Because it appears from the complaint that the
right of the plaintiffs to maintain this action is derived
by inheritance from devisees under the will of Lucy P.
Green, deceased; and, it being admitted by the demurrer
that the ancestors of the plaintiffs are indebted to the
estate of Lucy P. Green, plaintiffs, take the assets
descended, charged with the debt of their respective
ancestors, and must account for such debts before they can
receive any portion of said estate; and the judge erred in
not so holding. And (3) because one of said devisees, to
wit, Allen J. Green, being also one of the executors of the
said Lucy P. Green, the plaintiffs who inherit through him
can take no assets of the said estate until accounting is
had of his executorship; and the judge erred in not so
holding. (4) Because, the demurrer admitting that the
contract of insurance only covered the interest of the life
tenant, the defendant Lucy J. Green, as matter of law the
remainder-men can have no interest in the insurance money;
and the judge erred in not so holding. (5) Because, even if
the contract of insurance be held, as matter of public
policy or law, to redound to the benefit of the
remainder-men, the defendant Lucy J. Green must be
reimbursed the insurance premiums and repairs made
necessary by the casualties of war, the same having been
paid out of her private funds; and the judge erred in not
so holding. (6) Because the insurance money arising from
the destruction of the dwelling house by fire became
personal; property, and, if it passed at all under the will
of Lucy P. Green, became a part of the residuary estate,
and, the answer alleging and the demurrer admitting an
original failure of assets, the defense was proper either
as a counterclaim or set-off; and the judge erred in not so
holding. (7) That under section 292 of the Code, and the
general principles of equity jurisprudence, all parties in
interest being before the court (Halcott P. Green, one of
the defendants, being admitted by the demurrer to be the
administrator de bonis non of the estate of Lucy P. Green),
the defendants have the right to have all matters arising
under the will of Lucy P. Green, and germane to the
settlement of her estate, adjusted in this action, even
though the matter be subject for an independent cause of
action, if for no other purpose, to prevent circuity of
action and multiplicity of suits; and the judge
erred in not so holding. (8) Because his honor erred in
referring all the issues of fact to the master, whereas it
is submitted that the defendants not having consented to
such order, it should have been referred only to take the
testimony and report the same to the court."
The
motion to dismiss is as follows: "Defendants
(appellants) move the supreme court to dismiss the complaint
herein because it appears from the face thereof that the same
does not state facts sufficient to constitute a cause of
action against the defendants, in that (1) it fails to allege
facts sufficient to show any obligation on the part of the
life tenant to keep the buildings insured, or that the
insurance effected by life tenant was taken to protect the
interest of the remainder-men; (2) it fails to allege that
the amount received by the life tenant from the insurance
company upon the burning of the dwelling exceeded the value
of her interest therein; (3) that from the facts stated, as
matter of law, the money arising from the insurance is the
sole property of the defendant Lucy J. Green, and neither the
plaintiffs not their ancestor, who were remainder-men under
the will of Lucy P. Green, deceased, have any interest
therein; and, failing in this, (4) that if the remainder-men
under the will of Lucy P. Green have any interest in the said
money arising from the insurance, as matter of law, that
interest is the right to receive, upon the death of the
defendant Lucy J. Green, the life tenant, only so much of the
$3,000, insurance money, as remains after deducting all
premiums of insurance that have been paid, without any
interest, and without any profits or accretions that may have
arisen from its use; and, there being no allegation of
insolvency, there is neither a resulting trust nor a case for
equitable interference made by the complaint."
POPE
J.
This
action was commenced on the 28th May, 1896, in the court of
common pleas for Richland county. The complaint alleged, in
substance.
In
first paragraph: That Lucy P. Green, widow, late of the city
of Columbia, in this state, departed this life on the 6th day
of April, 1864, leaving of force her last will and testament
whereby, in the first item thereof, she devised as follows:
"1st. I devise and bequeath to my daughter, Lucy J.
Green, my house and lot in Columbia, my present residence,
together with all the furniture and things appurtenant in the
house and kitchen. The lot contains one acre and a half, and
is separated by a fence from my adjoining lot. This devise is
made to her for life, for her sole and separate use, not
subject to debts, contracts, or control of any husband with
whom she may intermarry. At her death I devise and bequeath
the same to my four sons, Allen J. Green Halcott P. Green,
Frederick L. Green, and John S. Green, and the children of my
daughter, Lucy, if she should have any living at her death,
they taking among them one share. If she leaves none living
at her death, then to my four sons." "(2) That the
defendant Lucy J. Green, who is the devisee for life named in
said will, immediately after the death of said testatrix took
possession of the said lot of land, and, in person or by her
tenants, occupied the dwelling house thereon until its
destruction by fire in the year 1878. (3) That prior to said
fire the said Lucy J. Green, the life tenant, had caused said
dwelling house to be insured against fire, and, the said fire
having occurred while the said policy or policies of
insurance were in force, the said Lucy J. Green received
early in 1878, under said policy or policies, and on account
of said loss by fire, the sum of three thousand dollars,
which was paid to her by the insurance company or companies
which had underwritten such policy or policies. (4) That no
portion of the insurance money so received by the said Lucy
J. Green on account of the loss of the dwelling house on the
lot of which she is life tenant under her mother's said
will was used in rebuilding on said lot of land so held by
Lucy J. Green for life, but, though said money was held by
her in trust for the remainder-men under her mother's
said will, it was wholly used by her in the purchase of a
tract of land in and near the city of Columbia, known as the
'Brickyard Tract, containing 418 acres, more or less, and
hereinafter more particularly described, and was further used
in the purchase of one acre of land at the northeast corner
of Pendleton and Bull streets, in the city of Columbia, S.
C., bounded north by the life-estate lot first above
described, and east by Amy Taylor's; that other money
used by said Lucy J. Green in making said purchase, with
perhaps some inconsiderable exception, was obtained by her
borrowing the sum of ten thousand dollars on the security
mortgage of the said brickyard tract, which was afterwards
paid off and satisfied out of the proceeds of sale of said
brickyard tract made by her in the year 1891. (5) That on the
6th January, 1879, the said Lucy J. Green purchased at
judicial sale the said brickyard tract for the sum of $2,500,
and received title deed thereto, and all the money paid by
her on account of such purchase was received by her on
account of said fire insurance and said loan, and was applied
to a first mortgage covering said brickyard tract, to costs
and expenses of sale, and to a second mortgage and costs,
which had been previously purchased by her with a portion of
the said insurance money. (6) That on the 2d of February,
1880, the said Lucy J. Green purchased at sheriff's sale
the said one-acre lot at the corner of Pendleton and Bull
streets in Columbia, S. C., for the sum of $690, and received
a title thereto. A...
