Lemmon v. Wilson

• Citation: 28 S.E.2d 792,204 S.C. 50
• Decision Date: 24 January 1944
• Docket Number: 15588.
• Parties: LEMMON et al. v. WILSON et al.
• Court: United States State Supreme Court of South Carolina

28 S.E.2d 792

204 S.C. 50

LEMMON et al. v. WILSON et al.

No. 15588.

Supreme Court of South Carolina

January 24, 1944

Epps & Epps, of Conway, for appellant.

George D. Levy, M. M. Weinberg, S. K. Nash, A. S. Merrimon, and L E. Purdy, all of Sumter, for respondent.

The decree of Judge Stoll in the court below follows:

This matter comes before me on exceptions of the defendant Garnett Peatross to the Master's reports filed on the 18th day of September, 1942, denying the right of the said Garnett Peatross to participate in any manner in the trust fund more fully hereinafter referred to. The Master filed a supplementary report dated September 30, 1942, the same relating to unexpended income of the trust fund in question.

Thomas Wilson died on July 1, 1931, leaving of force his last will and testament which was duly admitted to probate in the Probate Court for Sumpter County, and a copy of the same is in evidence in this case.

At the time of the death of Thomas Wilson he left surviving him his widow, Mrs. Elizabeth Wilson, and his children, E. R. Wilson John Wilson, W. B. Wilson, C. M. Wilson, Martha W. Graham Elizabeth W. Lemmon, Thomas Wilson, and Mary Wilson.

C. M. Wilson died on May 2, 1922, leaving a widow and one son, the defendant, Thomas Wilson, III. E. R. Wilson died on September 24, 1924, testate, but leaving no issue. The will of E. R. Wilson was proved in solemn form in the Probate Court for Sumter County. Mrs. Elizabeth Wilson, the widow of Thomas Wilson, died testate on July 1, 1925, in and by her will leaving all of her estate to her daughter, Mary Wilson. W. B. Wilson died testate on October 6, 1927, leaving a widow surviving him, to whom he devised all of his estate but no children surviving. John Wilson died testate on December 30, 1936, leaving a son, John Vernon Wilson, and an adopted son, Charles H. Wilson. These two have agreed between themselves by stipulation with reference to the matters referred to in this decree. Mary Wilson, who subsequently married the defendant, Garnett Peatross, died testate on October 14, 1941. Mary Wilson Peatross left no children or grandchildren surviving her there never having been any children born to her. By her last will and testament all of her property was bequeathed and devised to the defendant, Garnett Peatross.

The executors and trustees named in the will of Thomas Wilson were John Wilson, E. R. Wilson and G. A. Lemmon.

Thomas Wilson by his last will and testament devised unto his wife, Elizabeth, for her life, all of his estate of every nature and kind, except that out of the income he directed that the sum of Five Thousand ($5,000) Dollars per annum be paid to his daughter, Mary, by his wife each year during the life of the wife of the said Thomas Wilson, and after the death of his wife Elizabeth, Thomas Wilson devised, amongst other trusts, the trust more particularly hereinafter referred to.

On the 19th day of July, 1931, the widow and all of the children of Thomas Wilson, except Thomas Wilson, Jr., entered into an agreement bearing date the 19th day of July, 1921, which agreement is attached to the answer of Garnett Peatross and is in evidence as an exhibit.

E. R. Wilson, one of the trustees named in the will of Thomas Wilson, having died on September 20, 1924, the surviving executors, pursuant to their authority in the will of Thomas Wilson, elected Miss Mary Wilson in the place of E. R. Wilson, and Miss Mary Wilson, who subsequently married the defendant, Garnett Peatross, continued to act as trustee of the estate of Thomas Wilson as well as trustee for her own trust fund up until the time of her death on October 14, 1941. Upon the death of G. A. Lemmon, Mrs. Elizabeth W. Lemmon, a daughter of Thomas Wilson, was substituted as trustee in his place. Upon the death of John Wilson, J. A. Raffield was substituted as trustee in his place, and upon the death of Mary Wilson Peatross, Thomas W. Lemmon was substituted in her place.

In _______, 1937, an action was commenced by Martha W. Graham and Others, Plaintiffs vs. Mary Wilson Peatross, Elizabeth W. Lemmon and J. A. Raffield as Trustees under the Will of Thomas Wilson, Deceased, Defendants, the complaint in that case charging, amongst other things, mismanagement of the trust fund set up by Item III, sub-division 3, of the last will and testament of Thomas Wilson, said trust fund having been created for the benefit of Mary Wilson Peatross. This action will be referred to hereinafter as the "Accounting Suit."

Subsequent to the death of Mary Wilson Peatross, to-wit, December 23, 1941, an action was brought by Elizabeth W. Lemmon, J. A. Raffield and Thomas Wilson Lemmon as trustees under the last will and testament of Thomas Wilson, deceased, against Thomas Wilson, Charles H. Wilson, John Vernon Wilson, Thomas Wilson, III, Elizabeth W. Lemmon, Martha W. Graham, Robert E. Graham and Garnett Peatross for the purpose, amongst other things, of asking the aid of the Court in determining to whom the trust fund, known as the Mary Wilson trust fund, should be distributed. This suit was commenced for instruction by the trustees. Because of the fact that they were notified by Garnett Peatross that he claimed an interest in the corpus of said trust fund, he was made a party to said suit.

Pursuant to proper motion, I passed an order consolidating the first-named suit hereinafter called the "Accounting Suit" with the last-named suit which will be referred to as the "Action for Instruction."

In the suit of the trustees seeking instructions as to the distribution of the Mary Wilson trust fund, the defendants, other than Garnett Peatross, answered, setting up their claims to the said fund as the heirs-at-law of Thomas Wilson surviving as of the date of the death of Mary Wilson Peatross. The defendant, Garnett Peatross, by answer made claim to the entire trust fund of $200,000 by reason of his construction of the family agreement, dated July 19, 1921, and the decree and proceedings in the Court of Common Pleas enrolled as Judgment Roll No. 10890. His contention is that, under said agreement and the proceedings and decree in Judgment Roll No. 10890, his wife, Mary Wilson Peatross, became the purchaser of the fee in the entire trust fund, subject to being defeated only upon the death of Mary Wilson Peatross leaving children surviving her; that, as the sole devisee of his wife, she having died leaving no child, children or grandchildren, surviving, the fee then vested in the said defendant.

In failure of the first claim, that if said defendant, Peatross, was not entitled to the whole of said fund by reason of the facts set out in the first claim mentioned above, he was entitled to a 5/12 interest therein because of his contention that Item III, sub-division 3, of the will of Thomas Wilson provided that, in the event of the death of Mary without children, then the estate vested in the heirs-at-law of Thomas Wilson as of the date of the death of Thomas Wilson, and Elizabeth Wilson, the widow of Thomas Wilson, as an heir of her husband, taking a 1/3 interest therein, this 1/3 passed to Mary under the Will of Elizabeth, and Mary having taken a 1/12 interest as an heir of her father, Thomas, this interest passed along with the interest of the widow of Thomas Wilson in said fund to the said Garnett Peatross under the will of Mary Wilson Peatross.

The Master has filed a most illuminating, interesting, and well-considered report, finding against the defendant, Peatross, on his contentions as to both phases of his claims.

Exceptions were duly taken by the defendant, Peatross, to the Master's report, and these exceptions came on to be heard before me at my Chambers in Kingstree, S. C., on the 28th day of October, 1942. Prior to that time Counsel for all parties had handed to the Court the record in the consolidated cases, together with the written arguments, and the Court gave a week's study to the issues raised by the Exceptions before hearing argument.

Since that time the Court has given further study to the arguments filed and the authorities cited, and has reached the conclusion that the Master's findings of fact and his conclusions of law should be sustained upon the grounds hereinafter set forth. The two issues raised by the exceptions (these exceptions are not treated ad seriatim, but all of which have been considered by the Court) are as follows:

I. Is Garnett Peatross entitled to the whole of the Mary Wilson trust fund?

II. Is Garnett Peatross entitled to a 5/12 interest in said trust fund?

I have given careful study to the findings of fact made by the Master in this case, and have concluded that all of the same are correct. It is, therefore ordered, that the findings of fact of the Master be, and the same hereby are confirmed and made the findings of fact of the Court.

I. Is Garnett Peatross entitled to the whole of the Mary Wilson Trust Fund?

Garnett Peatross claims the whole of the $200,000 trust fund set up under Item 111, sub-division 3 of the will of Thomas Wilson for the benefit of his daughter, Mary, by reason of the construction placed by him upon the terms of the agreement dated July 19, 1921, and the proceedings and decree enrolled as Judgment Roll No. 10890, office of the Clerk of Court for Sumter County.

It is necessary to look to the agreement and the entire proceeding referred to to determine this issue.

The agreement provided that there was to be set off after the death of Elizabeth Wilson, the wife of Thomas Wilson, to the several children of Thomas Wilson, except his son, Thomas Wilson, Jr., equal shares of his estate. By sub-division (b) of Section 7 of said agreement it was provided: "That there shall be charged up as against the share allotted to Mary Wilson the property...