Appeal
from common pleas circuit court of Chester county; V. C
PRESSLY, Judge.
Action
by John C. McFadden, as administrator with the will annexed
of J. Madison Hefley, asking for a construction of the will
and for instructions how to proceed thereunder. The will is
as follows: " South Carolina, Chester County.
In the name of God, amen. I, J. M. Hefley, of the state and
county aforesaid, being of sound and disposing mind and
memory, do make and publish the following as my last will and
testament: Item 1. I give, devise, and bequeath to
my wife, Rebecca Hefley, during her life or widowhood, the
plantation whereon I now reside, and at her death, or in the
event of her marrying again, I give and devise the same to my
son William Henry, to be held by him in trust for his own use
and benefit, and for the use and benefit of all my other
children by my said wife, Rebecca, equally; the said
plantation to be the common homestead of all my said children
so long as they may choose to occupy it as such, and, in the
event of any of them removing therefrom, then the ones so
removing are to be entitled to receive from the net proceeds
of said plantation such amount as will equal that of those
who remain thereon. My said son William Henry is to have the
control and management of the said plantation. Item
2. I give and bequeath to my wife, Rebecca, all the horses
mules, cows, hogs, wagons, farming implements, household and
kitchen furniture, on said plantation, to have and to hold
the same during her life or widowhood, and at her death, or
in the event of her marrying again, I give and bequeath the
same to my said son William Henry, on the same conditions and
limitations, for the same purpose, as is set forth in the
preceding item in regard to my real estate. Item 3.
To my grandchildren, the children of Sarah Fudge, my deceased
daughter, I give and bequeath one hundred dollars each, to be
paid to them by my executors as they severally reach the age
of twenty-one years. Item 4. To my daughter Margaret
Nunnery I give and bequeath four hundred dollars, to be
invested by my executors in a homestead, the title to which
is to be made to the said Margaret Nunnery and the heirs of
her body. Item 5. To my daughter Mary Simpson I give
and bequeath four hundred dollars, to be invested in a
homestead by my executors, the title to which is to be to the
said Mary Simpson and the heirs of her body. Item 6.
I direct that my executors, hereinafter named, shall not
dispose of the stock I now hold in the National Bank of
Chester and the Fishing Creek Manufacturing Company, but
shall hold the same, and the dividends arising thereon shall
be paid by them to my said wife, Rebecca, so long as she
shall live, or so long as she shall continue a widow. At her
death, or in the event of her marrying again, the executors
shall collect the said dividends, and divide them equally
among my children by said wife Rebecca. Item 6. I
direct that my executors dispose of all my other property not
herein specifically disposed of, and that they shall collect
all moneys due me; that the same be deposited in the National
Bank of Chester, or some other safe depository; and that the
interest accruing thereon be used for paying expenses of
schooling the children; and, further, that the said money so
deposited be equally divided among the children of my wife
Rebecca, to be paid to them severally as they reach the age
of twenty-one years. Item 7. I appoint John Lyle and
William Walker to be the executors of this, my last will and
testament, hereby revoking all former wills by me heretofore
made. In testimony whereof I have hereunto set my hand, and
affixed my seal, this 11th day of July, A. D. 1883. J. M.
HEFLEY." [L. S.] Rebecca Hefley, widow of testator, and
her children by him, and also other children of testator by a
former wife, were made defendants. From the construction
placed upon the will by the circuit judge, Rebecca Hefley and
her children appeal.
McIVER
J.
The
questions raised by this appeal are as to the proper
construction of the will of J. M. Hefley, deceased, a copy of
which is set out in the case, and should be incorporated in
the report of this case. In item 1 of the will testator
devised to his wife, the defendant Rebecca Hefley, the
plantation on which he resided, with limitations over to her
children. In item 2 he gives to his said wife, with like
limitations over to her children, "all the horses
mules, cows, hogs, wagons, farming implements, household and
kitchen furniture, on said plantation." In item 3 he
gives to certain of his grandchildren $100 each. Item 4 is in
these words: "To my daughter Margaret Nunnery I give and
bequeath four hundred dollars, to be invested by my executors
in a homestead, the title to which is to be made to the said
Margaret Nunnery and the heirs of her body." In item 5 a
similar provision is made for his daughter Mary Simpson in
substantially the same language as that made for Margaret
Nunnery in the fourth item. In item 6 the testator directs
his executors not to dispose of his stock in the National
Bank of Chester and the Fishing Creek Manufacturing Company,
but to hold the same, and pay over the dividends arising
therefrom to his wife, Rebecca, during her life or widowhood,
and at her death or marriage divide said dividends among his
children by his said wife, Rebecca. In the next item, which
is also numbered 6, the executors are directed to dispose of
all other property not specifically disposed of, collect all
money due, and deposit the same in bank, "and that the
interest accruing thereon be used for paying expenses of
schooling the children; and, further, that the said money, so
deposited, be equally divided among the children of my wife,
Rebecca, to be paid to them severally as they
reach the age of twenty-one years." The testator, having
made no provision for the payment of his debts, doubtless
supposed that he would leave none. It turns out, however,
that such is not the case, and the controversy is as to what
provision shall be made for the payment of the debts and
legacies. The circuit judge held that items 1, 4, and 5 are
devises of real estate, and as such are specific, and must
therefore he provided for, after payment of the debts, before
any provision can be made for any of the legacies, either
general or specific. He also held that "the widow is
entitled to receive the dividends on the stocks bequeathed in
item 6 of said will, less so much thereof as may be required
to pay interest accrued since death of testator. The
remainder of the debts and expenses must be paid out of the
corpus of the personal property bequeathed in items
2 and 6 of said will, and leave is hereby granted to
plaintiff to sell so much of the same as may suffice to pay
said debts and expenses, and the costs of this case. Nothing
is left to satisfy the legacies of item 3 and of the second
item 6." From this judgment Rebecca Hefley and her
children appeal, upon the several grounds set out in the
record, which raise, substantially, the following questions:
(1) Whether items 4 and 5, which stand precisely on the same
footing, are specific devises of real estate, and as such
entitled to priority over specific legacies; (2) whether item
2 is a specific legacy; (3) whether...
