Kirkham v. First Nat. Bank
| Decision Date | 10 April 1929 |
| Docket Number | 12639. |
| Citation | 147 S.E. 648,149 S.C. 545 |
| Parties | KIRKHAM v. FIRST NAT. BANK OF CITY OF NEW YORK et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; John S Wilson, Judge.
Action by Mary Clark Kirkham, by M. M. Weinberg, her guardian ad litem, against the First National Bank of the City of New York and others. From a decree for plaintiff, the defendant Emory W. Clark appeals. Affirmed.
Lee & Moise, of Sumter, for appellant.
F. A McLeod, of Sumter, for respondents.
The first codicil of the last will and testament of Mary Clark Thompson, deceased, was as follows:
"I hereby give and devise to my niece, Mary Clark Kirkham 'Cedarhurst' situate in said town, township and State containing sixty (60) acres more or less, and any lands adjoining thereto which hereafter may be acquired by me; the same upon her death to go to her issue, if any, but in case she should die leaving no issue her surviving then the said lands and premises to vest absolutely in my nephew, Myron Clark Williams, or in his heirs or devisees, if he shall not survive the said Mary Clark Kirkman."
There was added to "Cedarhurst" other lands, which increased the total acreage to 383 acres, all of which passed under the devise set forth.
No construction of the language of the clause of the codicil, quoted above, is asked for in this action.
The infant plaintiff, who is unmarried and 19 years of age, by her duly appointed guardian ad litem, seeks in this action a sale of the devised lands, and the appointment of a trustee by the court to hold the proceeds of sale and invest the same under the order and direction of the court. The defendants are the executors and trustees under the will of the testatrix, Myron Clark Williams, and Emory W. Clark, the proposed purchaser, in their own rights.
Myron Clark Williams, an uncle of Mary Clark Kirkham, has been married for a number of years, but has no child. He is a trustee as to some of the property bequeathed and devised by the testatrix, but he is not a trustee as to "Cedarhurst."
The executors and trustees have no objection to the sale of the lands, and really, as they allege, have no interest therein. The defendants Williams and Clark are agreeable to the sale on the terms proposed, but Clark has some doubt as to the title which he may obtain.
The case was referred to the master for Sumter county, who recommended the sale by the court on the terms hereinafter referred to. His report was affirmed by Hon. John S. Wilson, circuit judge. His decree does not appear in full in the transcript. We gather, however, from what is before us, that he directed a sale of the lands to Emory W. Clark for $5,000, and that the purchase money is to be held by the National Bank of Sumter, as trustee, and is to be invested by the trustee from time to time in such investments as are to be approved by Myron Clark Williams and Emory W. Clark. It does not so appear, but we take it for granted, that the trustee is to furnish proper surety, guaranteeing the performance of the duties of the trust.
Emory W. Clark, the proposed purchaser, has appealed from the decree of the circuit court. By his exceptions, he raises two questions: (1) That no reasonable necessity for the sale of the land has been shown; and (2) that the court cannot give him a fee-simple title to the land, clear of all trusts and limitations, for the reason that the decree of the court would not be res adjudicata or binding upon such persons who may take the property after the falling in of the immediate estate of Mary Clark Kirkham should she die leaving issue, as none of said persons, nor a representative of them, are before the court in this action. The appellant refers to Miss Kirkham as a life tenant; we are not to be understood as adopting this characterization.
As to the first question: The testimony of several reputable witnesses, some of them entirely disinterested, before the master sustains...
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