Jaudon v. Ducker

• Decision Date: 06 October 1887
• Citation: 3 S.E. 465,27 S.C. 295
• Parties: JAUDON and others v. DUCKER and others.
• Court: South Carolina Supreme Court

3 S.E. 465

27 S.C. 295

JAUDON and others v. DUCKER and others.

Supreme Court of South Carolina

October 6, 1887

Appeal from court of common pleas, Charleston county; HUDSON, Judge.

McGOWAN J.

On January 24, 1884, Henry Williams, of Charleston, executed his last will and testament, by the first clause of which he bequeathed $1,000 to Dorothea Catrina Sonnichsen, and to Peter F. Sonnichsen the same amount, and to Boy Diedrich Sonnichsen $2,000. By the second clause he devised and bequeathed to his wife, for life, with remainder over, his residence and household furniture, and eight lots of land, with the buildings thereon, "situate on Williams court in Charleston." And by the third and fourth clauses he provided as follows: "It is my will that as soon as possible after my death the rest and residue of my estate, real and personal, shall be divided into two equal parts, the said division to be made by three appraisers, one to be appointed by each of my daughters hereinafter named, and the third by the trustee hereinafter appointed. One of the said equal parts of the rest and residue I give, devise, and bequeath unto Christopher G Ducker, his heirs, executors, administrators, and assigns upon the trusts nevertheless, and for the ends, uses intents, and purposes following, that is to say: Upon trust that he, the said Christopher G. Ducker, shall and do pay unto Alice Barberry, wife of John B. Miller, the dividends, interest, and annual product of the said one-half part of the rest and residue when and as the same shall become due and payable, for and during the life of the said Alice Barberry, and from and after the death of the said Alice in trust," etc. Precisely the same provision was made as to the other moiety of "the rest and residue" of the estate, in favor of his other daughter, Henrietta Ann, wife of Luder Sahlmann, etc. In the eighth clause, the said Christopher G. Ducker was appointed executor, with full power to sell and convey any and all parts of the estate, "real or personal, at public or private sale, for the purpose of making a partition and division of the same as provided." On November 4, 1885, the testator executed a codicil to his will, by which he made an additional pecuniary legacy of $1,000 in favor of John Sonnichsen, and on December 4, 1885, died.

The executor qualified, and, as we suppose, delivered to the widow the lots and household furniture specifically devised and bequeathed to her; but finding that the remainder of the personal property was appraised at only $1,399.68, and the claims against the estate amounted to $4,865, and the real estate (exclusive of that specifically devised to the widow) was valued at $40,340, he declined to pay the several pecuniary legacies given by the will, upon the ground that they are only payable out of the personality of the estate, which is not even sufficient for the payment of the debts. Thereupon this proceeding was instituted for the recovery of the legacies; the legatees claiming that the legacies are charged upon the real as well as the personal property of the estate, except that specifically devised to the widow.

The cause came on to be heard by Judge HUDSON, who held, principally upon the authority of Moore v. Davidson, 22 S.C. 94, that the pecuniary legacies are chargeable upon the real as well as the personal property disposed of by the residuary clause of the will; that "the rest and residue of the estate, real and personal," which was given to the trustee Ducker for the daughters, meant that which might remain after the specific provision for the widow and the legacies had been carved out of the estate, etc.; and ordered the executor, Ducker, to pay the legacies within a time named, or, in case of his failure to do so, that so much of the real estate as might be necessary for that purpose be sold at public outcry, etc. From this decree the defendants appeal to this court upon the ground "that the presiding judge erred in holding that the legacies given to the plaintiffs in his will by the testator, Henry Williams, are a charge upon 'the rest and residue' of the real estate of the said testator," etc.

In the construction of a will, of course, the first and great object should be to ascertain the intention of the testator, and that intention must be gathered from the...