Thomson v. Ehrlich

• Decision Date: 13 December 1928
• Docket Number: 12472.
• Parties: THOMSON v. EHRLICH et al.
• Court: South Carolina Supreme Court

146 S.E. 149

148 S.C. 330

THOMSON v. EHRLICH et al.

No. 12472.

Supreme Court of South Carolina

December 13, 1928

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Action by Francis E. Thomson against John G. Ehrlich and others. From the judgment, John G. Ehrlich and certain other defendants appealed. Reversed and remanded.

D. W Robinson and D. W. Robinson, Jr., both of Columbia, for appellants.

Benet Shand & McGowan, of Columbia, for respondent.

GOTHRAN J.

This appeal was heard at the March session of the spring term, 1928, and on June 14, 1928, an opinion was filed reversing the judgment of the circuit court and dismissing the complaint.

A petition for a rehearing was filed by the plaintiff respondent, and upon consideration it was granted. The appeal then came on to be heard at the October session of the fall term.

The court has with the greatest care reviewed the former decision and has been assisted by elaborate arguments filed upon the rehearing. It has not been convinced that the result heretofore announced should be entirely reversed.

The action is by Francis E. Thomson, who claims the fee-simple title to the real estate in question, two stores, Nos. 1639 and 1641 Main street, in the city of Columbia, against the heirs at law of Rebecca Ehrlich, for the purpose of quieting his title thereto.

The property belonged to Rebecca Ehrlich at the time of her death, October 14, 1889. By her will, dated December 22, 1923, she devised it to her son Frank N. Ehrlich, "his heirs and assigns forever, upon trust nevertheless and to and for the uses, intents and purposes hereinafter limited, described and declared; that is to say upon trust to receive the issues, rents and profits arising therefrom and to apply the net income after the payment of taxes, insurance, repairs and all other charges to the sole use, benefit and behoof of my daughter, Matilda Friday, for and during the term of her natural life or in his discretion to permit her, the said Matilda Friday, to use, occupy and enjoy the said property and to receive the issues, rents and profits arising therefrom for and during the term of her natural life and from and after the death of the said Matilda Friday upon trust for such child or children as she may leave her surviving, share and share alike, the child or children of a deceased child to take the share to which the parent would be entitled if living, but should the said Matilda Friday die not leaving issue living at the time of her death, then and in that event the said Frank N. Ehrlich shall hold the said property upon trust for such person or persons as she, the said Matilda Friday, may thereunto nominate and appoint by her last will and testament. ***"

Upon the death of the original trustee, Frank N. Ehrlich, Matilda Friday, by virtue of the authority conferred upon her in the will of Rebecca Ehrlich, appointed her brother Edward M. Ehrlich, trustee, and upon his death her nephew Frank N. Ehrlich, one of the defendants herein; and on March 4, 1924, she substituted the plaintiff, Francis E. Thomson, as trustee, in the place of the defendant Frank N. Ehrlich.

Matilda Friday, the beneficiary of the trust, died childless February 13, 1925, leaving a will which, after a pecuniary legacy of $500 to her grandniece, Lewis Louise Thomson, and a specific legacy of her jewelry, to her niece, Rebecca E. Thomson, contained this clause:

"4. I give, devise and bequeath to my grandnephew, Francis Ehrlich Thomson, all the rest and residue of my estate, real, personal, mixed or of any nature whatsoever, to him, his heirs and assigns forever."

The plaintiff, Francis E. Thomson, contends that, under the will of Rebecca Ehrlich, Matilda Friday was given the power to name the recipient of the fee-simple title to this property, upon her death "not leaving issue at the time of her death," and that the above-quoted clause constitutes an execution of that power; the appellants deny the correctness of that contention; the other defendants, children of Frank N. Ehrlich, Sr., deceased, Rebecca E. Thomson, and Emma L. Menge, are aligned with the plaintiff, Francis E. Thomson, and are not appellants.

The sustaining of the contention of the appellants would result in declaring the property in controversy intestate property of the estate of Rebecca Ehrlich, distributable among her heirs at law.

The genealogy is somewhat confusing; in explanation it may be stated: Rebecca Ehrlich had three children (perhaps more; if so, they died without children, and their interests are not here involved), Matilda Friday, Frank N. Ehrlich, Sr., and Edward M. Ehrlich; Frank N. Ehrlich, Sr., is dead, leaving five children, Frank N. Ehrlich, Jr., John G. Ehrlich, Edward M. Ehrlich, Rebecca Thomson, and Emma L. Menge; the plaintiff, Francis E. Thomson, a son of Rebecca Thomson, is a great-grandson of Rebecca Ehrlich, and a grandnephew of Matilda Friday; Edward M. Ehrlich, the third of the children of Rebecca Ehrlich, died without children.

The case was referred to J. C. Townsend, Esq., master, who flied his report, dated November 24, 1926, recommending a decree to the effect that "Mrs. Matilda Friday did intend to execute, in her will, the power given her under the will of Rebecca Ehrlich, and that the defendants, and all other persons claiming or to claim the real estate in question by, through, or under them, be forever barred from asserting any claim to the same."

Upon exceptions to this report his honor, Judge Wilson, filed a formal decree, dated April 27, 1927, confirming the report in all respects, and from his decree the appellants named above have appealed, upon the following exceptions:

"1. That his honor erred in confirming the master's report, paragraph 22 of the said report, that parol evidence was admissible at the hearing, to explain the writing, and the given circumstances and the testimony of the plaintiff himself was admissible; the error being that this evidence was inadmissible (a) as tending to vary or contradict the terms of the will, and in violation of the parol evidence rule; (b) in violation of the statute of wills; (c) because the intent of the testatrix must be found in the written will alone; (d) in violation of section 708 of the Code of Civil Procedure 1922.

"2. That the court erred in adjudging that the will of Matilda Friday was an execution of the power of appointment granted to her by the will of Rebecca Ehrlich, and that the said will of Matilda Friday executed this power in favor of the plaintiff, Francis Ehrlich Thomson; the error being that the said will of Matilda Friday did not constitute an execution of the said power, and did not operate as an appointment of the real estate described in the complaint to the plaintiff herein."

As we view the case, it becomes necessary to consider only the second exception, as the first exception complains of the admission of certain parol evidence, which really amounts to little.

The plaintiff claims the legal title to the property; it is by no means certain that the power of appointment extended further than to designate the beneficiaries of the trust, in the event of the death of Matilda Friday without children, vesting in him or them an equitable estate, as manifestly the fee was in the trustee and intended to remain in him under the terms of the will. This, however, is not conclusive of the issue, as doubtless the legal title in the substituted trustee (Francis E. Thomson) would merge in his equitable title if his contention be sustained; but it is a material consideration, as we shall see, in determining the real issue, whether the will of Matilda Friday constituted an execution of the power.

In testing the efficacy of the contents of an instrument which is claimed to have constituted an execution of a testamentary power of appointment, it is interesting and instructive to compare those contents with what would reasonably be expected in such an instrument. Nowhere are they more clearly defined than in the language of Chancellor Kent, 4 Kent, 329, quoted with approval by this court in Bilderback v. Boyce, 14 S.C. 528:

"Every instrument executing a power should mention the estate or interest disposed of; and it is best to declare it to be made in exercise of the power, and the formalities required in the execution of the power must appear on the face of the instrument."

Measured by this yardstick, it is manifest that the clause falls very far short of a strict compliance with the requirements; it makes no mention of the will of Rebecca Ehrlich which conferred the power, nor of the existence of the power, nor of a purpose to execute it, nor of the property over which the donee had been invested with the power of appointment.

The language of the clause limits the provision in favor of Francis E. Thomson to "my estate"; that is, the estate of the testatrix, Matilda Friday. The decisions of this court establish the principle that a power of appointment by will, vested in a devisee or donee by will, is not a part of the estate of the donee of the power.

In Bilderback v. Boyce, 14 S.C. 528, the court said: "When, therefore, a testator having property leaves a will, disposing of it in the usual manner, without any reference to a power, the inference, in the absence of other proof, is that the will is not one of the exceptions, but, as it purports, disposes only of the estate proper of the testator."

And again it is said in the same case: "The words in the residuary clause are very comprehensive, 'whatever and wherever,' but they do not reach to the hotel, for the reason that they refer in terms to the testator's 'estate.' The expression 'all the rest and residue of my estate, of every nature and kind,' in...