Rogers v. Rogers

• Decision Date: 20 July 1903
• Citation: 45 S.E. 176,67 S.C. 168
• Parties: ROGERS et al. v. ROGERS et al.
• Court: South Carolina Supreme Court

45 S.E. 176

67 S.C. 168

ROGERS et al.

v.ROGERS et al.

Supreme Court of South Carolina.

July 20, 1903.

SPECIFIC LEGACIES—ADEMPTION—PAROL EVIDENCE—INTENT.

1. Where testator bequeathed to a legatee all the claims held by testator against his father and all his interest in the father's estate, such legacy was specific, and was adeemed by testator's collection of the same during his lifetime by taking a bond and mortgage on land sold by order of the court to pay the father's debts.

2. Where testator adeemed a specific legacy of all claims held by him against his father's estate by taking a bond and mortgage therefor during his life, parol evidence was inadmissible to show that testator intended such bond and mortgage to pass to such legatees in lieu of the claims bequeathed.

Appeal from Common Pleas Circuit of Marlboro County; Klugh, Judge.

Action by Lizzie Rogers and others against Minnie B. Rogers, as executrix of the estate of F. B. Rogers, and others. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

J. H. Hudson, for appellants.

J. M. Johnson and T. W. Bouchier, for appellees.

JONES, J. This appeal comes from an order sustaining a demurrer to the complaint for insufficiency, and involves inquiry whether the circuit court erred in holding that the legacy claimed is specific and has been adeemed under the allegations of the complaint. The complaint alleges that Frank B. Rogers. late of Marlboro county, died September 4, 1903, leaving his last will and testament, and that the defendant, Minnie B. Rogers, his wife, duly qualified as executrix thereof, that plaintiffs are sisters of the testator, and that said will contained the following clause with respect to them: "I will, devise and bequeath unto my three sisters, Sarah Elizabeth Rogers, Minnie Rogers and Annie L. Rogers and their heirs and assigns forever the claims of every kind and description which I hold against the estate of my father, Henry J. Rogers, deceased, together with all interest I have in said estate as heir-at-law of my said father."

The complaint further alleges: "(4) The will of the said testator, F. B. Rogers, was executed on the 18th day of March, 1891, and at that time the estate of his said father. Henry J. Rogers, was indebted to the said testator in the sum of $775.68, with interest from January 1, 1890, by note of hand, and in the sum of $302.92, with interest from November 1, 1890, by note of hand, and in the further sum of $153.90 by open account. (5) On the 20th day of December, A. D. 1890, Henry J. Rogers died intestate, leaving but a very small personal estate, but seised and possessed of a tract of about 1, 400 acres of land, and owing perhaps $1,500, the greater part of which was due to F. B. Rogers upon an open account and notes aforesaid. Under proceedings instituted to settle the estate of Henry J. Rogers, it was by agreement of the family arranged that a tract of land containing 272 acres should be sold for cash to pay the aforesaid indebtedness to F. B. Rogers and the other small debts of the estate. Accordingly, the said land was sold by the clerk of this court on November, 1891, and bid off by Julius E. Rogers, at and for the sum of $2,000, which sum was paid to the clerk by F. B. Rogers by receipting to the clerk for the amount of the claims he held against his father, H. J. Rogers, and which had been duly established before said clerk under an order calling in creditors, and the difference was paid by said F B. Rogers in cash to the other distributees and creditors. Then the said F. B. Rogers took from the purchaser, Julius E. Rogers, his bond for $2,000, payable in equal annual installments, with interest on the whole payable annually, and in this way he invested in this bond and mortgage the indebtedness of his father, which he had bequeathed to these plaintiffs, and during his life held the same for them as and for and in full substitution of the said indebtedness, and as representing said bequest. (6) That the said indebtedness was never, in fact, collected by F. B. Rogers in his lifetime, but the form of the security was changed as aforesaid in the winding up and settlement of the estate of his father—a change rendered necessary by that contingency, and made by F. B. Rogers with a special view of securing to and reserving for these plaintiffs the legacy given them in his will, and ever thereafter during his life so stated and acknowledged. * * *'

Upon demurrer the circuit court held the alleged legacy to be specific, and that the complaint shows that it has been adeemed. The contention of appellants' counsel is (1) that the legacy is not specific, but is a pecuniary, demonstrative legacy; (2) that, if specific, it has not been adeemed under the facts stated. General, specific, and demonstrative legacies are thus defined in 18 Ency. of Law, 711, 714, 721: "A general legacy is one which is payable out of the general assets of the testator's estate, being a gift of money or other thing in quantity, and not in any way separated or distinguished from other things of like kind." "A specific legacy is a gift by will of a specific article or part of the testator's estate, which is identified and distinguished from all other things of the same kind, and which may be satisfied only by delivery of the particular...