Leaphart v. Harmon

• Decision Date: 08 March 1938
• Docket Number: 14632.
• Citation: Leaphart v. Harmon, 186 S.C. 362, 195 S.E. 628 (S.C. 1938)
• Parties: LEAPHART et al. v. HARMON et al.
• Court: South Carolina Supreme Court

195 S.E. 628

186 S.C. 362

LEAPHART et al. v. HARMON et al.

No. 14632.

Supreme Court of South Carolina

March 8, 1938

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

Suit by Henry W. Leaphart and others against H. L. Harmon, R. A Barr, and Horace E. Snelgrove, as executors of the estate of Ella Leaphart Fulmer, deceased, wherein a certain trust established by deceased was challenged as in violation of the rule against perpetuities. From a decree for defendants plaintiffs appeal.

Affirmed and exceptions overruled.

E. L. Asbill, of Leesville, for appellants.

Callison & Smith, of Lexington, for respondents.

WM. H GRIMBALL, Acting Associate Justice.

This cause now comes to this court on appeal from a decree of Hon. H. F. Rice, judge of the second circuit. This appeal presents two issues, viz.:

First. A proper interpretation of the following section of the Code of 1932: "§ 9052. No gift, devise, bequest, or settlement in trust or otherwise shall be held to be void as a perpetuity where the same is made for the purpose of maintaining, caring for, or keeping in repair any tomb, monument, burial lot, burial ground or cemetery, whether public or private, where the remains of human beings are interred; and all such gifts, devises, bequests, or settlements in trust or otherwise are hereby declared to be for a charitable purpose."

Second. Does a trust necessarily fail by reason of the failure or neglect of the named trustee to act?

The appellants herein are the heirs at law and next of kin of the late Ella Leaphart Fulmer, who died testate in the year 1936.

In her will the testatrix directed that she be buried in the cemetery of St. Paul's Lutheran Church, commonly known as Hollow Creek Church, by the side of her sister, Sarah M. Price.

Perhaps having read Justice Cothran's words in describing the graveyard in the case of Frost v. Clay Company, 130 S.C. 72, 124 S.E. 767, 769, "It may appropriately have been called 'God's Acre,' for He alone had visited it," testatrix provided in her will as follows: "Item Six: I will and direct that my executors after converting all property of every kind and character into cash, and paying for all the items herein directed, that any balance or residue which may be left be by them paid over to the Church Council of St. Paul's Lutheran Church and by them invested in Government Bonds and the proceeds or income therefrom be expended in keeping up the graves of myself and my sister, Sarah M. Price, in perpetuity."

The record shows that the residue of the estate falling within the terms of this item in the will amounts to approximately $1,500.

The appellants herein, heirs at law and next of kin of the testatrix, by this suit challenge the application of this fund to this trust on the ground that the trust is void in that it violates the rule against perpetuities, and that it does not come within the terms of section 9052 of the Code above quoted.

Judge Ric...