Magrath v. Magrath

• Decision Date: 08 July 1937
• Docket Number: 14510.
• Citation: 192 S.E. 273,184 S.C. 243
• Parties: MAGRATH v. MAGRATH et al. MAGRATH et al. v. MARSHALL et al.
• Court: South Carolina Supreme Court

192 S.E. 273

184 S.C. 243

MAGRATH v. MAGRATH et al.

MAGRATH et al. v. MARSHALL et al.

No. 14510.

Supreme Court of South Carolina

July 8, 1937

Appeal from Common Pleas Circuit Court of Charleston County; Wm. H Grimball and M. M. Mann, Judges.

Proceeding in the matter of Selina E. Magrath, as executrix of William J. Magrath, and individually, against Maria Gordon Magrath and Emily Magrath, wherein Maria Gordon Magrath and Emily Magrath filed an ex parte petition, and the Carolina Savings Bank and Alexander Marshall, as administrator d. b. n. c. t a. of the estate of William J. Magrath, were joined as parties defendant. From an adverse order and from a decree affirming the master's report in favor of the petitioners, Alexander Marshall, as administrator d. b. n. c t. a., appeals.

Affirmed.

The master's report follows:

This cause was by order of the Honorable William H. Grimball judge of the Ninth circuit, dated June 29, 1936, referred to the undersigned master for Charleston county to take the testimony and to hear and determine all of the issues of fact and of law therein, and to report his findings of fact and conclusions of law to this court, with leave to report any special matter. I have held a reference, the minutes of which, including a transcript of the testimony taken, and certain exhibits, are hereto attached. The issues before me involve the construction of the will of William J. Magrath and the present disposition of the remaining assets of his estate in conformity with such construction.

I find the following as matters of fact:

William J. Magrath, late of Charleston county, died on May 8, 1902 leaving of force his last will and testament dated May 25, 1886, which was thereafter duly admitted to probate in the probate court for Charleston county. The testator left surviving him, as his nearest of kin, his widow, Selina E. Magrath, and their two daughters, Maria Gordon Magrath and Emily Magrath, petitioners herein, who were and are his only children.

By the terms of his will, the testator devised and bequeathed to his wife, Selina E. Magrath, in bar of dower and any other claim upon his estate, the sum of $10,000, and confirmed in her the title to the residence on Lynch street (now Ashley avenue) in the city of Charleston which he had previously caused to be made in her name. He then proceeded to dispose of the rest and residue of his estate as follows:

"Item: The rest and residue of my estate, I hereby direct and so devise and bequeath shall be kept together; the income issue and profit thereof to be received and taken by my said wife, for the support and maintenance of my wife and children, during such time as my wife shall remain a widow and unmarried. But in case she shall marry again, then from and after that event such income, issue and profit of my estate, shall be exclusively applied for the support, maintenance and education of my children-until such time as either shall attain the age of twenty-one years. On the happening of that event, if both are then surviving, the share of each shall be ascertained by an equal division of my estate-and the share of the one having reached the said age, shall be conveyed in strict settlement on her for life; and in case of marriage, free from all debts and contracts of any husband she may marry; with remainder to any child or children the issue of such marriage she may leave surviving her. But in case such child or mine, shall die before reaching the said age of twenty-one years; or having reached that age shall not marry; or, having married, shall die leaving no child or children surviving her; then the share of my estate so ascertained for her, shall revert and become part of my estate-and become vested in my surviving child; subject to the limitations and conditions as are herein declared concerning the share of my estate to be taken by such surviving child.

Item: When the younger of my children shall arrive at the age of twenty-one years, the share of my estate to which she is entitled, and corresponding in value to that given to my other child, her sister, shall be held and taken by her subject to the same limitations and conditions, hereinbefore expressed and declared, of and concerning the share of my estate set apart and given to her sister. And such trusts limitations and conditions shall be alike applicable to the share of either which may come to the other by death or any other contingency. It being my intention and that intention being a condition affecting the shares of my children; That on the happening of any contingency because of which the share of either may fall in, for the benefit of the other; The same shall be held and taken subject to the same limitations and conditions as were declared of and concerning the same, as hereinbefore set forth.

Item: In the event of the death of both of my said children leaving no child or children surviving either, I will and direct that from the income, issue and profit of my estate, my wife during her widowhood and as long as she shall continue unmarried, shall be entitled to receive the sum of Three Thousand Dollars annually-the same shall be a charge on my estate, and made secure to her, for and during her widowhood, and as long as she shall continue unmarried. And subject to such charge, I give, devise and bequeath my estate to my next of kin, to be divided between them, according to the law of this State relating to the distribution of an estate, among the next of kin."

The remaining items of the will, which do not involve the issues immediately under consideration, but which occasioned the proceedings next referred to, are as follows:

"Item:

As my only surviving brother has expressed the wish not to be an Executor of this will and testament-while willing to do all he can to advise and direct my wife and my children in all matters that affect their temporal welfare, I hereby designate him, A. G. Magrath, as the testamentary guardian of my children, and each of them-and now impose on him the obligation to see, that my purpose and intention in this will and testament are carried out and executed. And I do specially enjoin it upon my wife and children in all matters of my estate to be guided by his advice and to seek his direction in all that relates to their personal welfare.

Item: It is my earnest wish and desire, and I do now so expressly direct, that my estate, real and personal, shall be kept together-and no sale or division thereof, shall be made, except in the contingencies and for the purposes hereinbefore expressed. And that in every and in all cases, no change shall be made in the estate of which I may die seized or possessed unless and until application is made to the Probate Court, specifying the circumstances under which such application is made with a statement of what change is required or desired, and filing a statement of such particular part of my estate as that in which any change is desired or required, and in what the change is to be made.

Lastly: For the purpose of enabling my wife during the minority of each of my children, and during her widowhood, in case she shall not marry again, to receive and apply the rents, issues and profits of my estate for the maintenance and support of my wife and children and for the education of my children, I nominate and appoint my wife, Selina E. Magrath, while she remains a widow and unmarried, executrix of this my last will and testament. And if she shall not remain a widow and unmarried, then upon her ceasing to be a widow and marrying again, I revoke the said nomination and appointment."

In December, 1904, Selina E. Magrath filed in this court her bill of complaint against Maria Gordon Magrath (therein referred to as Mary G. Magrath) and Emily Magrath, seeking authority to sell a certain piece of land belonging to the estate, and praying that the will of William J. Magrath be construed in certain particulars there indicated. In that complaint it is alleged that the plaintiff and her two daughters, the defendants, are in doubt:

(a) Whether any part of the estate not devised or bequeathed to Selina E. Magrath is to be conveyed in strict settlement to either of the defendants, inasmuch as both of them have reached the age of twenty-one years, and Selina E. Magrath has never remarried; or whether the estate, other than that portion bequeathed to Selina E. Magrath, is to be kept together, and the income, issues, and profits thereof to be received and taken by Selina E. Magrath for the support of herself and her said two children during the whole period of her widowhood, until she may marry again or so long as she may remain unmarried;

(b) Whether the devise over to the testator's next of kin is to take effect upon the death of either of said children leaving no child or children surviving them after the death of the testator, or only in the event of their death or the death of either of them leaving no child or children surviving them respectively, before the death of the testator;

(c) Whether the provision in the will, to the effect that in every and all cases no change should be made in the estate unless and until application be made to the probate court, is intended to apply only to the case of the death of the testator leaving his daughters, the defendants, minors, or whether it is intended to apply indefinitely to the period after the death of the testator, so long as his widow shall remain unmarried, even though his daughters, the defendants, are over the age of twenty-one years and had arrived at that age before the death of the testator.

(d) How to sell any of the real estate belonging to the estate of the testator, there being no provision in the will for such sale other than the provision with regard to...