Torre v. Chesnut
| Decision Date | 10 February 1931 |
| Docket Number | 13066. |
| Citation | 156 S.E. 906,159 S.C. 282 |
| Parties | TORRE et al. v. CHESNUT et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; William H. Grimball, Judge.
Suit by Thomas Della Torre and another, as executors under the will of Mrs. Alexina Holmes, deceased, against James Chesnut and others. From the decree rendered, William Taylor Chesnut Jr., and two others appeal.
Modified and case remanded.
W. R Symmes, of St. Matthews, and Thos. P. Stoney, Malcolm E Crosland, and H. L. Erckmann, all of Charleston, for appellants.
Huger, Wilbur, Miller & Mouzon, Henry W. Connor, and Paul M. Macmillan, all of Charleston, for respondents.
This is an appeal from a decree of his honor, Judge Grimball, construing a certain feature of the will of Mrs. Alexina Chesnut Holmes, affecting adversely the claims of the appellants Edna E. Miller, James G. Chesnut, and William Taylor Chesnut, Jr., children of William T. Chesnut, Sr., a brother of the testatrix, who predeceased her.
The situation is quite complicated, but may be grasped by careful attention to the following undisputed facts:
Mrs. Alexina Holmes died on March 8, 1929, leaving a very large estate, over $200,000, and a will which was duly admitted to probate in Charleston county; the plaintiffs Thomas Della Torre and Gordon Miller were appointed and duly qualified as executors thereunder.
After a number of devises of real estate and specific legacies of personal property, which are not involved in the present controversy, the will provided:
"I give, devise and bequeath all the rest, residue and remainder of my estate wheresoever situate, to my executors, or such of them as shall qualify, in trust to sell and dispose of the same as soon as practicable after my death, and to dispose of the net proceeds of sale as follows: ***"
Then followed a list of 25 pecuniary legacies, ranging from $500 to $30,000, and aggregating $137,000; included among them were pecuniary legacies of $30,000 to her brother W. T. Chesnut, $30,000 to her brother James Chesnut, and $25,000 to her sister Ellen W. Chesnut.
The will provided:
"But if the net proceeds of the sale of the residue of my estate shall not be sufficient to pay all of the aforesaid legacies in full, it is my will (and I so direct) that the legacies to my brothers and sister shall not abate, but shall first be paid in full before any of the other legacies above provided for are paid."
It also provided:
"If any balance shall remain in the hands of my executors after the payment of the aforesaid legacies, I give, devise and bequeath the same to my brothers W. T. Chesnut and James Chesnut and to my sister Ellen W. Chesnut, or to such of them as shall be living at the time of my death, in equal shares."
The brother W. T. Chesnut, to whom the legacy of $30,000 had been bequeathed, died in August, 1928, several months prior to the death of Mrs. Holmes in March, 1929. The main issue in the appeal is the proper disposition of the legacy to W. T. Chesnut.
The appellants, children of W. T. Chesnut, contend that the legacy did not lapse, but that it devolved upon them as his heirs at law, according with the manifest intention of the testatrix; alternatively they contend that if lapsed, it became intestate property distributable among the heirs at law of the testatrix, including themselves.
The case was referred to F. K. Myers, master, by a general order of reference. On January 18, 1930, he filed a report holding that the legacy to W. T. Chesnut lapsed by reason of his death before that of the testatrix, and, in effect, that as the legacy was a part of the residuary estate, after the specific devises and legacies contained in the earlier part of the will, bequeathed to the executors in trust to pay the 25 pecuniary legacies, it should remain as a part of that residuary fund and devoted to the payment of the legacies to those other than W. T. Chesnut; and that if any part of the residuary fund, including the W. T. Chesnut legacy, remained, such balance should be paid to the sister Ellen W. Chesnut, the brother James Chesnut, and the children of W. T. Chesnut under the final clause of the will above set forth disposing of said balance.
The matter then came on to be heard by his honor, Judge Grimball, upon exceptions to the master's report. On March 19, 1930, he filed a decree sustaining the conclusions of the master, expressing a doubt whether the children of W. T. Chesnut were entitled to share in the balance that might remain after payment of the 24 legacies, but holding that as there were no exceptions to this part of the master's report, it was the law of the case. The improbability of there being any such balance, referred to as a probable or possible "pittance," renders the question of little significance, though we may add that we sympathize with the doubts of the circuit judge in reference to the participation by the children of W. T. Chesnut in the "pittance."
From this decree the defendants, children of W. T. Chesnut, have appealed raising practically the contentions above indicated.
Strictly speaking, the provision in the will in favor of W. T. Chesnut is not a pecuniary legacy, but a beneficial interest to the extent of $30,000, in a trust fund in the hands of the executors as trustees, the fund being the proceeds of a conversion into money of all of the estate that remained after taking care of the specific devises and specific legacies provided for in the preceding portion of the will.
The same result, however, follows whether the provision be considered the creation of a beneficial interest in a trust fund or a pecuniary legacy; under either view the beneficiary or legatee did not live to enjoy an investiture of it, and a lapse necessarily resulted; the further disposition of it depended upon the existence of an ulterior designation of it upon the lapse, which might have been accomplished by a provision in the will or by the creation of a residuary estate into which it would have been submerged.
It seems clear that there is contained in the will no ulterior direction for the fund to take in the event of a lapse of any one of the special beneficial interests or legacies; and unless there be a general residuary clause in the will under which certain persons named may be entitled to take, the provision for W. T. Chesnut is either a beneficial interest in a trust fund or a pecuniary legacy which has failed, and upon its lapse by reason of the death of W. T. Chesnut during the life of the testatrix, at her death it became intestate property distributable among her heirs at law.
In 1 Perry, Trusts (7th Ed.) § 160, it is said:
***"
There appears to be no doubt but that, as Mr. Perry states in section 160a:
"The donor, settlor, or testator still retains such an interest in property given by him in trust, that the interest which results upon the failure of the trusts created by him may be devised by him, and the question in each case is whether the resulting interest becomes a part of the residue and passes to the residuary legatee, if there is one, or whether it passes to the heirs."
In other words, the testatrix in this will might have provided that in the event that W. T. Chesnut predeceased her, the interest bequeathed to him should devolve upon his children or be given any other direction optionable with her; or she might have provided a general residuary clause which would have directed the disposition of all property not passing by the will. As we view the matter, she did neither, and as a consequence, the amount bequeathed to W. T. Chesnut out of the first residuum (what remained after providing for the devises and bequests contained in the earlier part of the will) became intestate property distributable among the heirs at law of the testatrix. In other words, it was, by the lapse, completely withdrawn from the trust fund represented by the first residuum as explained, and lost all connection or communion with it and the other beneficiaries under that clause.
The first suggestion of a residuary clause in the will occurs in that portion which directs the conversion into money of the entire estate which should remain after the completion of the devises and bequests in the earlier part of the will. That of course, in a sense, is a residuary clause, but it is not a general residuary clause; it disposes only of that particular residuum which is constituted a trust fund, in the hands of the executors out of which they are directed to pay certain persons named certain sums of money. There is no indication in the will that in the event that there should be a lapse of any interest, the amount of that interest should become a part of the residuum. The testatrix does not seem to have considered the possibility of a lapse and therefore appears to have made no provision for it.
The necessary result of the conclusion of the master, confirmed by his honor, the circuit judge, is to make the lapsed interest of W. T. Chestnut (trust or legacy) a part of the residuary clause created by the paragraph of the will under consideration. The conclusion...
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