Hughes v. Kirkpatrick

• Decision Date: 20 September 1892
• Citation: 15 S.E. 912,37 S.C. 161
• Parties: HUGHES et al. v. KIRKPATRICK et al.
• Court: South Carolina Supreme Court

15 S.E. 912

37 S.C. 161

HUGHES et al. v. KIRKPATRICK et al.

Supreme Court of South Carolina

September 20, 1892

Appeal from common pleas circuit court of Abbeville county; I. D WITHERSPOON, Judge.

Proceedings by Mary Hughes and others against Hannah Kirkpatrick and others for a settlement of the estate of Jane Taylor deceased. Plaintiffs had judgment, and defendants appeal. Reversed in part.

Testatrix directed that certain real estate and all of her personal property should be sold, and the proceeds thereof equally divided among her eight children, naming them; and that "my desire is that all my children shall be made equal and, in making the division, all advancements heretofore made to them in land are to be accounted for by them in accordance with the terms of the deeds of conveyance to them respectively"; that "I have not included in this my will, my home tract * * * [which] I intend to convey to my daughters H. and A. by deed as to the others;" to H. the lower part, containing 200 acres, and to A. the remainder containing 250 acres; "and I do hereby give and devise the above-named tracts to said H. and A., as above directed, in the event my death should occur before making the deeds to them as above indicated." Held that, as testatrix died without making the conveyances to H. and A., they took the land mentioned as devisees rather than as grantees, and hence are entitled to share in the proceeds of the sales directed without any liability to account as advancements for the value of the land devised to them.

Following is the will of Jane Taylor, deceased, referred to in the opinion: "I, Jane Taylor, of said state and county, being sound in mind and memory, but realizing the uncertainty of life, do hereby make and ordain this to be my last will and testament, hereby revoking and annulling any other heretofore made. First. I desire all my just debts, should there be any at my death, to be paid. Second. I desire and hereby direct that my tract of land containing two hundred and ten (210) acres, more or less, bounded by lands of R. P. Shaw, Malcolm Erwin, Moore, and others, be sold by my executor hereinafter named, on such terms and at such times as in his judgment may be best for the interest of all concerned. Third. I desire that all my personal property, consisting of household and kitchen furniture, stock, notes, evidences of indebtedness, and of every other description, to be sold or collected in money, and realized as the case may be. Fourth. The proceeds of the real estate and of the personal property I direct to be divided equally, share and share alike, between my eight children, namely: R. T. Kirkpatrick, Mary Hughes, Margaret Dodson, Barbara Brock, Jane Johnson, Elizabeth Shaw, Hannah Kirkpatrick, and Annie Taylor, or to the child or children of any of my above-named children who may happen to die before my death. My desire is that all my children shall be made equal, and, in making the said division, all advancements heretofore made to them in land are to be accounted for by them in accordance with the terms of the deeds of conveyances to them respectively. Fifth. I have not included in this, my will, my home tract containing four hundred and fifty acres, as the said tract I intend to convey to my daughters Hannah Kirkpatrick and Annie Taylor by deed as to others, viz.: To Hannah Kirkpatrick the lower part adjoining lands of Jane Johnson, estimated to contain two hundred acres, more or less, by lines which I have indicated, and of which a plat is to be made, and to Annie Taylor the remainder of said tract, estimated to contain two hundred and fifty acres, of which a plat is to be made, and a deed of conveyance, (subject to the enjoyment and use of my husband, James Taylor, of the dwelling house, and one hundred acres attached, of the tract set apart and allotted to said Annie Taylor;) and I do hereby give and devise the above-named tracts to said Hannah Kirkpatrick and Annie Taylor, as above directed, in the event my death should occur before making the deeds of conveyance to them as above indicated. The one hundred acres of the tract given to Annie Taylor, of which the use and enjoyment is given to James Taylor, is to be during his natural life or widowhood. Sixth. I have given directions about my burial expenses, and gravestone, which I desire my executor to carry out. I hereby appoint Richard T. Kirkpatrick executor of this, my last will and testament. In testimony of which I have hereto attached my name and seal this fifth day of October, A. D. 1887. JANE TAYLOR, [L. S.] Signed, sealed, and declared as for her last will and testament by the testatrix in the presence of us, who have signed our names as witnesses thereto in her presence and the presence of each other. WM. H. PARKER. W. C. McGOWAN. WM. P. CALHOUN."

The circuit court entered the following decree: "Jane Taylor, the wife of the defendant James Taylor, and the mother of the plaintiffs and of the other defendants above named, died testate on or about the 16th day of December 1888. The defendant R. T. Kirkpatrick, a son of Jane Taylor, duly qualified as executor of her will. The plaintiffs, four of the children of Jane Taylor, instituted the above-entitled action in the probate court for Abbeville county for an account and settlement of the estate of Jane Taylor. The defendants Hannah Kirkpatrick and Annie Taylor appealed from the decree of the probate court, rendered May 14, 1891, and the cause came on to be heard by this court upon said appeal. The first and second grounds of appeal allege that the probate judge erred in disallowing the claim of Annie Taylor for services rendered her deceased mother. I do not think that the evidence is sufficient to establish the claim, and the first and second grounds of appeal are overruled. The third, fourth, fifth, and sixth grounds of appeal alleged that the probate judge erred in so construing the will of Jane Taylor as to require the legatees who received lands in the lifetime of testatrix to account for the same at the value fixed by appraisers appointed by testatrix, and that the appellants should account for the land devised to them at the value fixed by appraisers appointed by the executor. The seventh and last ground of appeal alleges that the probate judge erred in concluding that those who receive more than an equal share of testatrix's property must pay back a sufficient amount of money to produce equality. In construing the will effect must be given to the intention of the testatrix as ascertained from the consideration of the entire will, as well as the circumstances under which the will was executed. The will is dated October 5, 1887. Prior to that date testatrix had conveyed portions of her land to all of her eight children, with the exception of the appellants Hannah Kirkpatrick and Annie Taylor, and had the land so conveyed appraised by sworn appraisers of her own selection. The land conveyed to her son R. T. Kirkpatrick consisted of 155 acres valued at $6 per acre; the 150 acres conveyed to Mrs. Hughes was valued at $5 per acre; the 168 acres conveyed to Mrs. Brock was valued at $8 per acre; the 152 acres conveyed to Mrs. Shaw was valued at $7 per acre; the 126 acres conveyed to Mrs. Dodson was valued at $10.50 per acre; and the 120 acres conveyed to Mrs. Johnson was valued at $9.50 per acre. Testatrix did not convey any portion of her land to her daughters, the appellants Hannah Kirkpatrick and Annie Taylor. Under these circumstances testatrix executed her will. After providing in the first clause for the payment of debts, testatrix in the second clause directs her executor to sell a certain tract of 210 acres of land, and in the third clause directs the sale of her personal property, etc. In the fourth clause testatrix directs that the proceeds of the real estate and of the personal property be divided equally, share and share alike, between the eight children as above named, and the following is the conclusion of said fourth clause: 'My desire is that all my children should be made equal, and, in making the said division, all advances heretofore made to them in land are to be accounted for by them in accordance with the terms of the deeds of conveyance to them respectively.' Testatrix states in the fifth clause, 'I have not included in this, my will, my home tract, containing four hundred and fifty acres, as the said tract I intend to convey to my daughters Hannah Kirkpatrick and Annie Taylor by deeds as to others;' and, after indicating how she intended to divide the 450 acres between said daughters, the fifth clause of said will concludes as follows: 'I do hereby give and devise the above-named tracts to said Hannah Kirkpatrick and Annie Taylor as above directed, in the event that my death should occur before making the deeds of conveyance to them as above indicated. The one hundred acres of the tract given to Annie Taylor, of which the use and enjoyment is given to James Taylor, is to be during his natural life or widowhood.' The sixth and last clause of the will relates to the burial of the testatrix. The two hundred acres devised, under the fifth clause, to Hannah Kirkpatrick, were valued September 14, 1889, at $11 per acre, and the balance of the 450 acres devised to Annie Taylor under said clause was valued at $13 per acre by sworn appraisers appointed by the executor. Two of said appraisers had been selected by testatrix to fix the value of the land conveyed by her to the other children, and, the third appraiser selected by testatrix being dead, the executor substituted another. The appellants Hannah Kirkpatrick and Annie Taylor contend that the main object of the will was to provide for the distribution of the proceeds of the 210 acres of land and the personal property arising...