Renwick v. Smith
| Citation | 11 S.C. 294 |
| Decision Date | 27 January 1879 |
| Docket Number | CASE 674. |
| Parties | JOHN R. RENWICK AND JAMES E. RENWICK v. G. D. SMITH, ADMINISTRATOR OF W. W. RENWICK, J. W. N. BEARD, ADMINISTRATOR OF C. S. BEARD, AND R. B. LYONS, ADMINISTRATOR OF JAMES ROGERS. |
| Court | South Carolina Supreme Court |
1. An administrator filed a sworn return, intended to be a full and final account, but produced no vouchers, and no decree was passed by the Ordinary, and no notice of such filing was had by the distributees; held , that there was not such an abandonment of his trust, as would give currency to the statute of limitations. Cases reviewed .
2. A bequest to " my daughter R. and her children" of certain negroes, " lately appraised at three thousand dollars, she accounting for interest from January 1st, 1842 till my death, and at that time she is to receive an equal part, with her other sisters of" certain other personalty; R. having no children at death of testator held , that she took an absolute estate in all the property given to her by this clause of the will.
3. Where a testator in the last clause of his will, (not having previously disposed of his entire estate,) bequeathed all the " rest and residue" of his " " other property," to his four children, and directed that if any of his daughters should die without leaving children " their property hereby given" was to go over-the word hereby referred to the " other property" mentioned in this clause, and not to the dispositions of the entire will.
4. Where a husband administered on an estate, in which his wife had an interest, and wasted the assets before her death in 1850, his marital rights attached upon his wife's share of the assets so wasted.
A bequest to " my daughter R. and her children" of certain negroes, " lately appraised at three thousand dollars, she accounting for interest from January 1st, 1842 till my death, and at that time she is to receive an equal part with her other sisters of" certain other personalty; R. having no children at death of testator, held, that she took an absolute estate in all the property given to her by this clause of the will.
Before NORTHROP, J., at Union, June Term, 1876.
The plaintiffs are the only children of Rosannah P. Renwick, who was the wife of W. W. Renwick, and daughter of John Rogers-all of Union county. John Rogers died January 27th, 1847, leaving of force a last will and testament, bearing date March, 1842; and he left surviving him one son and three daughters. The son, James Rogers, was nominated executor, but he renounced the executorship, and also released all of his interest in the estate in favor of his sisters. Letters of administration cum testamento annexo , were granted March 20th, 1847, to W. W. Renwick and Clough S. Beard, jointly, both of whom had married daughters of testator, and James Rogers signed their administration bond as a surety. W. W. Renwick attended to almost all of the duties of the office.
Mrs. Renwick had no children at the date of her father's will and none at his death. Her first child was still-born between those dates. Her second was the plaintiff, John R., born November 2d, 1847, and her third and last, James E., was born December, 1849. She was married in 1841, and died January, 1850.
In August, 1851, W. W. Renwick, as administrator, filed his return in the Court of Ordinary, sworn to as stated in the opinion of the court, wherein he charged himself with all of his receipts on account of the estate, and credited himself with all of his payments, and with " net balance for distribution, $10,574.88; " " " " next follows an account, wherein he credits himself with " distribution of above net balance, as per will," that is-
| To Jane E. Beard and R. P. Renwick, to make their advancements equal to S. M. Lyons' | $1504 50 |
| To Jane E. Beard and husband | 3023 46 |
| To R. P. Renwick and husband | 3023 46 |
Then follows credit of $431.92 to each of four children of Mrs. Lyons (a daughter of testator, then deceased,) with no total added up. Next follows under head of " Dr." the very same items, together with $431.92 to each of the remaining three of Mrs. Lyons' children, and a total of $10,574.88. The return has no dates whatever to the items.
The personal property was sold March, 1847, on a credit of one year; the land was sold (under a power given in the will) in November, 1847, for $3700, on a credit of one and two years, and was purchased by W. W. Renwick. These two sale bills, together with cash on hand at testator's death, made up the entire estate, with the addition of only $96.37, collected by W. W. R. before 1850. The personal estate sold for $5966.72, of which Renwick purchased $2570.37, Beard $829.35, other parties $2567.
C. S. Beard died in 1871, W. W. Renwick in 1872, and James Rogers in 1873; and the defendants, J. W. N. Beard, G. D. Smith and R. B. Lyons, respectively, administered on their estates.
The action was commenced January 27th, 1875.
The complaint claimed that Rosannah P. Renwick was entitled only to a life estate in the property willed to her; that the plaintiffs, her sons and only children, were entitled to an absolute estate in remainder therein; that no part of the share of the said Rosannah P. had ever been delivered to her in her lifetime, or to the plaintiffs since her death; that there was due the plaintiffs the sum of $4527.96, with interest from January 31st, 1850, as appeared from returns of the said administrators of John Rogers, and that the administrators had wasted the assets of the estate.
And the complaint prayed judgment for the sum of $4527.96, with interest from January 31st, 1850, for an account for costs and for general relief.
The defendants answered, denied that the plaintiffs had such an estate as they claimed, and insisted that the said Rosannah took an estate in fee simple absolute under the will. They also insisted that the estate of Rosannah went into the possession of her husband, and that his marital rights attached thereto. And they further claimed the protection of the statute of limitations, because the cause of action did not accrue to either of the plaintiffs within four years before the commencement of their action.
The clauses of the will construed by the court are as follows:
3. I give, devise and bequeath to my daughter, Rosannah P. Renwick, and her children, the following negroes: Rosy, Lucy, Jim, Elijah and Rosetta, her children, and Jesse and Ned, lately appraised, as aforesaid, at three thousand dollars, she accounting for interest from the first day of January, eighteen hundred and forty-two, till my death, and at that time she is to receive an equal part, with her other sisters, of my land and negroes above stated, including the Hagar family of negroes.
5. I reserve a life estate in all my other property, and at my death I wish my other negroes fairly appraised and given off to my children in families, as they can best agree among themselves; if not, sold and divided as above stated; the rest and residue of my other property to be sold and divided in four equal parts among my aforesaid children, and if any of my daughters should die without leaving children, their property hereby given to be divided in four equal parts, one part to be retained by their husbands, and the other three parts to come back to my other children.
By the fourth clause of the will, the only land of which testator died seized was directed to be sold; and counsel agreed that it was thereby converted into personalty.
The Circuit judge decided that John R. Renwick was barred by the statute of limitations; that James E. Renwick was not so barred; that, under the will, Rosannah P. Renwick took a life estate, with remainder in fee to her sons, the plaintiffs; that the marital rights of W. W. Renwick did not attach to her share. And the decree referred it to the clerk to take an account in conformity with such rulings.
From this decree John R. Renwick appealed, upon the ground that he is not barred by the statute. And all the defendants appealed, upon the grounds that the statute of limitations barred James E. Renwick; that the said Rosannah P. took an absolute, indefeasible estate under the will; and that the marital rights of her husband, the said W. W. Renwick, attached to her share.
Mr. J. F. J. Caldwell , for plaintiffs.
An administrator or other fiduciary, and the sureties on his bond, cannot claim the benefit of the statute of limitations against the cestuis que trust. Ang. on Lim. , § 166, et seq.; 2 Desaus. 54; 4 Strob. Eq. 207. The only qualification allowed of this rule is where some act is done by the fiduciary purporting to be a termination or disavowal of the trust. 4 Rich. Eq. 60; 4 Strob. Eq. 189; Bail. Eq. 195; 1 Strob. Eq. 79; 2 Strob. Eq. 334; 3 Strob. Eq. 39; 3 Rich. L. 438; 14 Rich. Eq. 176. But this case is like none of these. He states the balance due, but does not profess to have paid them. If the statute did bar, it would only bar an accounting, not a demand of balance admitted to be on hand.
II. The second question is whether Rosannah P. Renwick took a life estate under John Rogers' will, the remainder being in his sons, the plaintiffs, or whether she took an absolute estate.
It is indisputable - since Lampley v. Blower , 3 Atk. 396; Henry v. Archer, Bail. Eq. 535; Nix v. Ray , 5 Rich L. 423-that a devise or bequest to one and his or her children or issue, with a limitation over, in case of the death of the first taker without having issue, operates to create a purchase, and not an inheritance, on the part of such children or issue, and thereby creates a life estate in the first taker and an estate in remainder in the children, after the death of the first taker. On the other hand, it is conceded that a bare bequest...
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