Hamrick v. Marion

• Decision Date: 05 June 1935
• Docket Number: 14079.
• Citation: 180 S.E. 213,176 S.C. 361
• Parties: HAMRICK v. MARION et al.
• Court: South Carolina Supreme Court

180 S.E. 213

176 S.C. 361

HAMRICK v. MARION et al.

No. 14079.

Supreme Court of South Carolina

June 5, 1935

Appeal from Common Pleas Circuit Court of Chester County; H. F Rice, Judge.

Suit by R. E. Hamrick against Mrs. Annie May Pryor Marion and others. From an adverse decree, defendants appeal.

Affirmed.

Hemphill & Hemphill, of Chester, for appellants.

Hamilton & Gaston, of Chester, for respondent.

BAKER Justice.

This is an appeal from decree of Hon. H. F. Rice, circuit judge construing the will of Mrs. Clara Dale Pryor Hamrick, and while the exceptions are six in number, the first of which was withdrawn, we adopt the statement of appellants' attorneys that there are in fact but two questions for the consideration of the court, viz.: (1) Was it the purpose and intent of testatrix to give respondent only a life estate in her property with vested remainder in appellants? and (2) Was it the purpose and intent of testatrix to give respondent such an unlimited power of disposition that he can as he may desire and for his own benefit dispose of the estate at will or was the power of disposition limited to disposition for the purpose of reinvestment, or upon the arising of some real need or necessity therefor?

The will in question is as follows:

" I, Clara Dale Pryor Hamrick, of the City of Chester, county and State aforesaid, being of sound and disposing mind and memory, hereby make and do publish and declare this to be my Last Will and Testament as follows, to wit:

First: I will and direct that all my just debts be paid.

Second: All my estate, real, personal and mixed, whatsoever and wheresoever situate, I hereby will, devise and bequeath to any child or children (share and share alike if there be more than one child) surviving me at my death, to them and their heirs forever. Provided, however, in case said child or children should die before reaching the age of twenty-one years, or without leaving child or children, then it is my will and desire that all of my estate, real, personal and mixed, shall go to my husband, Roswell Edmund Hamrick, for his natural life, and at his death to my sisters and brother, the share or shares of any deceased sisters or brother to go to his, her, or their children surviving them, to them and their heirs forever.

It is my will and desire that my estate shall be used for the benefit and education of my said child or children in whatever way may be deemed best by my said husband, Roswell Edmund Hamrick, who shall be the guardian of my said child or children, and have complete control and management of said estate. He is hereby authorized and empowered to sell any of my estate, real or personal, and make other investments, or use any part of the corpus of my said estate for the education, support and maintenance of my said child or children in case he deem it necessary and wise to do so. When, however, my said child or children shall have reached the age of twenty-one years, then he, she, or they shall come into full possession and control of said estate, as above provided.

Third: In the event I leave no child or children surviving me, then I give and devise all of my estate, real, personal and mixed, unto my beloved husband, Roswell Edmund Hamrick, for his natural life, and at his death said property to go to my sisters and brother, share and share alike, to them and their heirs forever. In case any sister or brother should die leaving child or children, then said child or children shall take the share of my estate that his or her parent would have taken.

It is my will, and I so direct, that my said husband, Roswell Edmund Hamrick, shall have complete control and enjoyment of my estate for his natural life. He is not to be hampered or limited in any way in the enjoyment and management of said estate, and he is hereby authorized and empowered to sell any of said estate, real or personal, with power to make deed or deeds of conveyance, and reinvest the proceeds thereof in other property in case he should find it necessary or expedient, with the same limitations as expressed in this will, using any part of the principal or corpus of said estate as he may desire. However, it is my will that the whole of my estate remaining at his death shall revert to my own family, my sisters and brother, or their surviving children, upon my said husband's death.

Fourth: I hereby nominate and appoint my husband, Roswell Edmund Hamrick as the Executor of this my Last Will and Testament; and in case I should leave child or children surviving me, then it is my desire that he shall be the guardian for said child or children as above provided."

This controversy arose when R. E. Hamrick, the husband of testatrix, and the first recipient of her generosity under the will, undertook to mortgage the real estate of which testatrix died seized and possessed for the purpose, as alleged in the complaint, of paying certain debts of the estate, and for building material which had been or was to be used in permanent improvements to the estate property.

Respondent arranged to borrow the necessary funds from the Federal Land Bank, a portion of which funds were to be used in purchasing a mule with which to farm the lands, a portion to be used in purchasing stock in the Federal Land Bank, and approximately $100 to pay abstract and various other fees. Before making the loan, said bank required an order of court authorizing the respondent to execute a mortgage securing the loan. Thereupon, this action was commenced, and the sisters and brother of testatrix, appellants in this court, were made parties-defendants. The testatrix died without leaving child or children.

Appellants answered, admitting the correctness of the wording of the will, the liability of the estate in the sum of $1,100 on account of bank stock in a closed bank, and that it was preferable to borrow by way of mortgage rather than sell any of the real estate on a depressed market, but...