Levy v. Williams
| Decision Date | 06 September 1873 |
| Citation | 4 S.C. 515 |
| Parties | LEVY v. WILLIAMS. |
| Court | South Carolina Supreme Court |
A decree in which infants were interested, made upon the pleadings, and unsupported by any state of facts established by proofs, set aside.
Where it is attempted to sustain a Circuit decree, as made by consent, the consent must appear on the record.
BEFORE GRAHAM, J., AT CHARLESTON, JULY TERM, 1872.
Jacob Barrett, the testator in the cause, died on the 13th day of November, 1871, leaving a last will and testament, dated the 21st day of September, 1870, and codicil, dated the 10th day of January, 1871. He left a considerable estate, real and personal, which he devised and bequeathed to his widow children and grand-children, all of whom survived him. The executors nominated by the will, who qualified and acted were George W. Williams, H. H. DeLeon and C. T. Lowndes.
The action was brought by the children of the testator, all of whom were adults, against the executors and the widow, and also against the grand-children, who were all minors, and its object was to obtain a settlement of the estate according to a certain construction of the will and codicil, which was suggested in the complaint.
The executors answered and stated, amongst other things, that they had not felt warranted in giving to the will and codicil the construction placed thereon by the plaintiff, as set forth in the complaint, and they submitted both the construction of the will and codicil, and their rights and duties as executors, to the judgment of the Court.
The widow, by her answer, admitted the construction put upon the will and codicil by the plaintiffs, and consented to the relief prayed for. Formal answers, on behalf of the infant defendants, were put in by their guardians ad litem .
The complaint and answers were all verified, but no proofs were taken either under an order of reference or by the Circuit Judge.
The following is the decree of the Circuit Court:
On hearing the pleadings read and argument in this case, and it appearing that all the parties now living who are interested under the will of the said Jacob Barrett are properly represented before the Court, and that all who are really intended to be beneficially interested thereunder by the said will and the codicil thereof are willing and anxious that the construction of the said will and codicil prayed for in the complaint may prevail, and it being apparent to the Court that such a construction would be consistent with the real intention of the testator, viz.: To provide for the support of his widow and his children and grand-children during the life of his said widow and of his children from the income of his estate, while leaving the absolute property eventually to go to his grand-children, after the death of each child these grand-children, however, not taking per capita , but as representing the share of each of their respective parents, as he or she may die, with cross remainders over in case of the death of any one of the children without children. No harm, it seems to this Court, could ensue from allowing the construction contended for by the complaint to prevail, and no person, either now living or hereafter to be born, could be prejudiced or injured thereby; but, on the contrary, the confusion and uncertainties from the words of the will and codicil, which now prevail to such an extent as to render the true construction of said will and codicil doubtful, would be avoided, and complete and absolute justice to all the parties be accomplished, while the real will and intentions of the testator would still remain, so far as it can be ascertained, with certainty and without confusion.
It is, therefore, ordered that the said executors do first proceed to carry out the will and codicil so far as the legacies to the congregation of Hasel street and to the Hebrew Orphan Society, and also so far as the same concerns the provisions made for the widow, Mrs. Hetty J. Barrett.
And it is further ordered that G. Lamb Buist, Esq., counsellor at law, be appointed a Referee for the purpose of ascertaining from testimony or otherwise, the cash value of the different pieces of real estate left to each of the children, so as to equalize the share of each, and that upon such value being found, the said Referee report to this Court such values, in order to effect an equalization, and that upon such report being made and confirmed, each party shall enjoy the real...
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