McFall v. Sullivan
| Citation | 17 S.C. 504 |
| Parties | MCFALL v. SULLIVAN. |
| Decision Date | 28 July 1883 |
| Court | South Carolina Supreme Court |
1. A testator specified and valued the property at that time and previously given to his children, and devised and bequeathed the balance of his property to his wife for life, and after her death to be appraised in lots and " the property taken into the general estimate and divided accordingly." He further directed that " on a final settlement of my estate, that each legatee get the same, and in the division, if it so happen that one gets more than another, that he have one year without interest to refund it in, except C., who I give $500 more than any of the rest." Held , that none of the children were required to account for advancements.
2. Inequality in the advancements cannot raise an inference of an intention contrary to that expressed in the will.
Before FRASER, J., Greenville, November, 1881.
This was an action by Jane C. McFall and others, children of John C. Sullivan, deceased, against William E. Sullivan administrator of J. C. Sullivan and others, legatees and devisees under the will of the said J. C. Sullivan, commenced in 1881, for a settlement of the estate of the testator. The case depended upon the construction of the following will:
In the name of God, amen, I, John C. Sullivan, of the District of Greenville and State of South Carolina, being of sound mind and memory, and considering the uncertainty of life, do make ordain, publish and declare this to be my last will and testament. That is to say:
First. After all my debts are paid, the residue of my estate, real and personal, I give, bequeath to, and dispose of as follows I have given all my children something but my daughter Clarissa, who I now give eleven negroes, Sam, Ann and her two children, Dennis and Cinda and their five children, together with their future increase, during her life, and at her death to her children. Also, one tract of land containing three hundred and eighty-one acres, consisting of a part of the tract I bought of Joseph Sullivan, and the part of the Martin tract which I purchased, and which was laid off for my daughter Elizabeth, but she moved off and left it. One horse saddle and bridle, with two beds and furniture, on which I have put the estimate of seven thousand five hundred dollars, which she is to hold during her life, and should she die without lawful heirs, or if heirs, and they should not live to become of age, then this property to be returned unto me if living, and if dead, unto my estate to be disposed of as my other property to my living children, or their legal representatives. I have already given my son John Dunklin Sullivan in land, negroes, stock and trade, horses, cattle, hogs, tools, both plantation and blacksmith's, amounting in all to five thousand eight hundred and fifty-six dollars, which can be seen by reference to my book of charges against my children; and, whereas, the stock I put in with him in the Grove store turned out to be an unprofitable concern after deducting whet I and my family have taken out of it, I release and give up to him any balance of interest I may have to him without any charge for the same. I have already given my daughter Sarah F. Agnew, in negroes, cattle, one mare, household and kitchen furniture, provisions, with five hundred dollars in money, making in all four thousand and eighty-three dollars, which can be seen by reference to my book of charges against my children. I have given my daughter Temperance E. Agnew, in negroes, cash, mules, cattle, hogs, household and kitchen furniture, with provisions, in all making the sum of forty-seven hundred and twenty-nine dollars, which can be seen by reference to my book of charges against my children. I have already given to my daughter, Jane C. McFall, in negroes, one horse, cattle, household and kitchen furniture, with provisions, making in all forty-three hundred and sixty-nine dollars, which can be seen by reference to my book of charges against my children. I have already given my daughter Emma A. Hardin, in negroes, cash, one horse, beds and furniture, the sum of forty-five hundred and sixty-five dollars, which can be seen by reference to my book of charges against my children.
Whereas, my daughter Martha Ann H. Sullivan married in 1855 with Adam L. Eichelberger and died the same year, after giving birth to a child, which died in January, 1856; I loaned them eight negroes with the express understanding that when I came to Florida in the fall I was to deed it in trust to my daughter, as I had the property of my other married daughters, but she died before I reached there, and Eichelberger refuses to give up the property, I intend instituting a suit against him, and if I do not live to carry it out, I set aside one thousand dollars, to be used by my executor in carrying out said suit in endeavoring to recover back said property; and for the base and unprincipled manner in which the said Eichelberger has acted, I leave him one cent as what I design for him out of my estate, and no more.
The balance of my property of which I may die in possession, I leave to my wife during her life-all my slaves, lands, except the Florida lands, stock of every kind, crop, plantation and blacksmith tools, wagons and carriages, debts due me, all the household and kitchen furniture, except two beds and furniture for Clara, the dividend on my stock in the Hamburg Bank, every other species of property of which I may die possessed, after carrying out the other provisions of this my will.
Should my wife survive me, at her death I wish my property appraised in lots, and taken by my children, Sarah's and Temperance's children each to draw a full share, to go into the hands of their mother's trustee, to be given up to them by him when they become of age; and should any of them die before they arrive of age, the others to take its interest, and if both die of either set, then the property to be taken into the general estimate and divided accordingly.
As soon after my death as convenient, I desire my executor to have the will proven and qualify; have all the property appraised, and if he cannot collect enough out of the debts due me, with the crop, to pay my liabilities, he must sell enough to meet the debts; and if they cannot agree on a division after my wife's death, these will empower him to sell all or any part either personal or real estate, and execute bills of sale and deeds of land; and it is my desire on a final settlement of my estate, that each legatee get the same, and in the division, if it so happen that one gets more than another, that he have one year without interest to refund it in, except Clarissa, who I give five hundred dollars more than any of the rest. It is my desire that my son John D. Sullivan settle up our copartner farm in Florida. Should any of my children murmur or express any dissatisfaction at the disposition I have made of my property, I wish it expressly understood that they be cut off without anything more than they have already received. I desire no sale of anything, but valued and taken by my children. I likewise appoint, make and constitute my son John D. Sullivan executor of this my last will and testament.
In witness whereof, I hereunto subscribe my name and affix my seal, this the 7th day of January, eighteen hundred and fifty-seven.
JOHN C. SULLIVAN, [L. S.]
Signed in presence of S. S. LANDERS, W. T. SHUMATE, HEWLET SULLIVAN.
The Circuit decree was as follows:
I concur with the Master in his finding of facts that the eleven (11) slaves mentioned in the will as given to testator's daughter Clarissa (now Mrs. Cannon) went into her possession as her property during the lifetime of testator, and were not a part of his estate at his death. I do not regard this fact, however, as at all important. The language in which this gift to Clarissa is made imports not a gift in futuro to take effect at death, but a gift in proesenti to take effect immediately . Testator says as to his other children, I have given , and as to Clarissa, I now give , and if she dies in his lifetime the property to come back to himself in certain contingencies. I am not sure that so much of this instrument is not a deed instead of a will. See Jarman on Wills (Jersey City Edition, 1880), *26, where it is said that there is no objection to one part of an instrument operating in proesenti as a deed and another in futuro as a will. If either by the words of the instrument itself or by...
To continue reading
Request your trial