Humphrey v. Campbell

• Decision Date: 21 September 1900
• Citation: 37 S.E. 26,59 S.C. 39
• Parties: HUMPHREY v. CAMPBELL et al.
• Court: South Carolina Supreme Court

37 S.E. 26

59 S.C. 39

HUMPHREY v. CAMPBELL et al.

Supreme Court of South Carolina

September 21, 1900

Appeal from common pleas circuit court of Charleston county; D. A Townsend, Judge.

Gary A. J., dissenting.

Suit by William F. Humphrey, trustee, against Mary Bennett Campbell and others. From a decree in favor of complainant, defendant the Home for Mothers, Widows, and Daughters of Confederate Soldiers, of Charleston, appeals. Affirmed.

Fitzsimons & Moffett, for appellant.

Smythe Lee & Frost, for respondents.

POPE J.

We think the report of W. Gibbes Whaley, Esq., as one of the masters of Charleston county, S. C., renders it unnecessary to refer at length to the pleadings and the exhibits. This report is as follows:

"Various reports have hitherto been filed in the above-entitled case, but, as the examination of the same would take up much time, I think it will be well to save the time of the court, and briefly rehearse the facts of this case before giving my conclusions on the matters of fact and law involved. I therefore report:

"As to matters of fact: (1) That on the 2d day of March, 1888, the plaintiff, William F. Humphrey, was, by a deed of indenture between George Bliss, of New York, party of the first part, and William F. Humphrey, of Boston, party of the second part, duly appointed trustee for Mary Eutler Campbell and Mary Bennett Campbell. (2) That the trust estate consisted of certificate No. 81, for thirty-nine (39) shares or parts in the Coosaw Mining Company. (3) That the trusts upon which the said trust estate was held were as follows: 'First. That the said party of the second part [William F. Humphrey] shall receive and collect the income, profits, and dividends as often and whenever the same shall be payable, and, after deducting all incidental expenses, shall pay over the same as follows: To Mary Butler Campbell the income from nineteen of said shares or parts, and to Mary Bennett Campbell the income arising from twenty (20) shares or parts, during their several lives. Second. That the said Mary Butler Campbell and Mary Bennett Campbell shall each have full right and legal power to distribute her share of the trust estate by will, and, if either of them leaves no will, the provisions of the will of the other shall govern the distribution or disposition of the whole of the said trust estate.' (4) That on the 15th day of August, 1891, Miss Mary Butler Campbell departed this life, leaving of full force and effect her last will and testament, in which said will the said Miss Mary Butler Campbell provided as follows: 'First. I direct the payment of all my just debts and liabilities, particularly the indebtedness now due the Confederate Home, of Charleston, South Carolina, of sixteen hundred dollars, held by me in trust for its benefit, and also the sum of eight hundred dollars due Harriet Poyas Walker, of Charleston, South Carolina. Second. I give and bequeath to my executor, hereinafter named, ten shares of the Coosaw Mining Company of South Carolina, to be held by him in trust; the income to be derived therefrom to be paid by him from time to time, as the same is received, to my niece Helen L. Campbell, of Massachusetts, and at her death to my nephew Benjamin F. Campbell, if he survives her. Third. I give and bequeath to my executor, hereinafter named, six shares of the Coosaw Mining Company of South Carolina, to be held by him in trust; the income to be derived therefrom to be paid by him from time to time, as the same is received, to Maria S. and Margaret S. Higgins. Upon the death of either I direct my executor to pay the income of three of said shares to the survivor, and on the death or marriage of the survivor, the trust herein created shall cease and determine. Fourth. I give and bequeath to Susan Rush Higgins, the wife of my nephew Cecil Campbell Higgins, three shares of the Coosaw Mining Company of South Carolina, for her benefit, and for the benefit of her children, my grandnephew Campbell Higgins and my grandniece Cecil Campbell Higgins, to be used and disposed of as the said Susan Rush Higgins may, in her judgment, think most advisable. And I further give and bequeath to the said Susan Rush Higgins the remaining shares of the Coosaw Mining Company of South Carolina, the income of which I have hereinbefore directed to be paid over to Helen L. Campbell or Maria S. Higgins and Margaret S. Higgins, subject, however, to the payment of the income derived from the shares left in trust for my executor for the benefit of said Helen L. Campbell, Benjamin F. Campbell (if he survives Helen L. Campbell), Maria S. Higgins, and Margaret S. Higgins, as hereinbefore designated. I give and bequeath all said shares to Susan Rush Higgins, to be used and disposed of by her for her own, use and benefit, and that of her said children, as she, in her judgment, may think most advisable.' Which bequests, briefly stated, are that she gives the stock to her executor, to be held in trust by him, and the income to be paid over to certain parties during certain lives, and then, under the fourth clause, all of the said shares of Coosaw stock given to Susan Rush Higgins to be hers absolutely. (5) That on the 23d day of July, 1894, the said the Confederate Home of Charleston, South Carolina, a party defendant in this suit, obtained a judgment in the court of common pleas of Charleston county for the sum of nineteen hundred and thirty-six and 66/100 dollars against Cecil Campbell Higgins, executor duly appointed and qualified under the will of Miss Mary Butler Campbell; the said judgment being a judgment against the estate of Miss Mary Butler Campbell. (6) That the Coosaw Mining Company, which has been a joint-stock company, subsequently became incorporated under the laws of the state of South Carolina, and that under a reorganization, and new arrangements made, the said Coosaw Company, acting under a decree of this court filed herein on the 2d day of July, 1898, issued to Frank E. Taylor, as substituted trustee for Mary Bennett Campbell, a certificate of stock for one hundred and four shares of the stock of the said Coosaw Company, and at the same time issued to W. Gibbes Whaley, Esq., the master herein, a certificate of stock for ninety-nine shares of the stock of the said Coosaw Company, which said last-mentioned stock, together with the dividends which had accrued upon the same, were to be held by the said master to abide the final decree in this case, and subject to the litigation between the executor of Miss Mary Butler Campbell and the Confederate Home. (7) That there is now in the hands of the master herein the said certificates of stock for ninety-nine shares of the Coosaw Company, and the amount of five hundred and thirty-seven and 50/100 dollars in cash.

"As to matters of law: Argument has been made both by Mr Moffett, representing the Confederate Home, and by Mr. A. M. Lee, representing the plaintiff and all other defendants,--other than the Confederate Home. On the part of the Confederate Home it is claimed that upon the death of Miss Mary Butler Campbell, leaving in effect the will referred to herein, then the stock of the Coosaw Company, she having executed the power of appointment provided for in the trust deed, became a part of her estate, and subject to her debts, and that the stock and cash now in the hands of the master are liable to be levied upon under the judgment obtained by the said Confederate Home. In support of this position the attorney for the Confederate Home submits the cases of Heath v. Bishop, 4 Rich. Eq. 46; Howe v. Gregg, 52 S.C. 88, 29 S.E. 394. On behalf of the plaintiff and the other defendants it is claimed that the estate of Miss Mary Butler Campbell in the Coosaw Company stock was an estate for life, with a power of appointment by will, and that, being such, Miss Campbell took nothing but a life estate, with the power to appoint, and that upon the failure to make such appointment the stock would have gone to such parties as Miss Mary Bennett Campbell might appoint by will, but that, having exercised the power of appointment, the estate must go to the appointees. See Williman v. Holmes, 4 Rich. Eq. 476; Scott v. Burt, 9 Rich. Eq. 358; Pulliam v. Byrd, 2 Strob. Eq. 134; Bilderback v. Boyce, 14 S.C. 528. On behalf of the plaintiff the question is also raised as to whether a judgment creditor could hold this specific property subject to a judgment, without first levying upon any other property which may be in this state, or upon certain real estate which it is admitted Miss Campbell owned in another state. I have disregarded the last question or questions, as, under my view of the case, it is a matter of no importance at present. I hold (1) that Miss Mary Butler Campbell had, in the Coosaw stock and cash now in my hands, an estate for life, with the power of appointment by will; (2) that, Miss Campbell having exercised the power of appointment by will, the property must go to such persons as she has appointed, and that the same is not liable for her debts. I recommend that the master herein be authorized and directed to turn over to the executor of Miss Mary Butler Campbell the shares of stock now held by him, and also the cash now in his hands, after deducting from the latter the costs and expenses of these proceedings. I attach hereto my notes of...