Smith v. Winn

• Decision Date: 12 December 1887
• Citation: 4 S.E. 240,27 S.C. 591
• Parties: SMITH et al. v. WINN et al.
• Court: South Carolina Supreme Court

4 S.E. 240

27 S.C. 591

SMITH et al. v. WINN et al.

Supreme Court of South Carolina

December 12, 1887

Appeal from common pleas circuit court of Union county; FRASER Judge.

Action by Asa Smith, trustee, and devisees in a will, against Mary Winn, executrix, and other devisees, to set aside for irregularities an appraisement and division of property made by the executrix acting under the will. There was a judgment for defendants, and plaintiffs appeal.

J. G McKissick, for appellants.

D. A Townsend, for respondents.

KERSHAW Special Judge.

On the sixth day of April, 1865, William Long, the elder, duly executed his last will and testament, whereby he appointed the defendant Mary Winn, then Mary Long, James B. Steedman, and his son, William Long, executors. Soon thereafter, and in the same year, he died, and his will was admitted to probate. Mary Long alone qualified as executrix thereof. The will, among other things, contained the following provision: "It is my will and desire, and I do hereby direct, the whole" (that is, the residue of his estate) "shall be appraised and divided by my executors, hereinafter named, into two equal shares or portions; one of which, and that one which my said wife shall choose or select, I give, devise and bequeath to my said wife, to have, use, and possess during the term of her natural life or widowhood, and from and after her death I give, devise, and bequeath the same to my children, and their representatives, subject to the terms and conditions hereinafter prescribed." The other half he directed to be divided into nine equal parts, and gave one part to each of his children by name, then alive, and the other to be equally divided between the two children of a deceased son, to be held for life, with remainders over. The will also provides that, "in estimating and appraising the value of my estate, I direct that a specie basis shall be used, or such value put upon my property as it would have borne in the year of our Lord one thousand eight hundred and sixty." The executrix, in the language of the referee's report, "appears to have acted with the most exemplary good faith, and to have been actuated by a desire to do every one of the legatees equal and exact justice. No step, however, unimportant, appears to have been taken without the consent and approval of all the parties in interest, who were of age to consent, or without the advice of skillful and able counsel."

In December, 1865, the executrix called in four neighbors, and had an inventory and appraisement of the estate made and filed in the office of the ordinary. No attempt was made then to divide the property; but, by agreement of the adult legatees, it was kept together, and planted for the common benefit. In August, 1867, the legatees agreed in writing "to divide the estate" according to the will. This agreement was signed by all the adult legatees, and the instrument proceeded: "Owing to the unsettled condition of the country and the probability of confiscation, we agree to rent that portion of the land belonging to the children and divide the proceeds at the end of each year," etc. On the twenty-first March, 1868, the property was appraised for the purpose of making a partition as directed by the will; the appraisers having been appointed by the ordinary, and acting under his warrant. They were three of the former appraisers. On the same day, five of the adult legatees signed a written guaranty, "faithfully, honestly, pecuniarily, and everything to a cent of property, to support the executors of the above deceased in any difficulty in law that she may become engaged in hereafter concerning the estate. This, in consideration that they do not charge any commission on the estate." Among the signers of this guaranty was Jane E. Smith, the plaintiff, and the cestui que trust of Asa Smith, plaintiff. All the legatees who were of age had full notice of these proceedings, and consented to and approved of them, and received portions under the partition made, including Mrs. Jane Smith and Asa Smith, her trustee. The referee and the circuit judge have concurred in the facts found, and this court can perceive nothing in the case that would...