Wolfe v. Wolfe

• Decision Date: 04 November 1949
• Docket Number: No. 16274.,16274.
• Citation: 56 S.E.2d 343
• Parties: WOLFE et al. v. WOLFE et al.
• Court: South Carolina Supreme Court

56 S.E.2d 343

WOLFE et al.

v.WOLFE et al.

No. 16274.

Supreme Court of South Carolina.

Nov. 4, 1949.

Albert B. Wolfe and others brought suit against Reginald R. Wolfe and others, wherein the defendants contended that a constructive trust arose when testator gave all of his property by will to two of his sons to the exclusion of his widow and seven other children.

The Common Pleas Court, Orangeburg County, E. H. Henderson, J., rendered a judgment for the plaintiffs, and the defendants appealed.

The Supreme Court, Per Curiam, affirmed the judgment, holding that evidence sustained finding that no constructive trust arose.

Hydrick & Hydrick, Orangeburg, J. M. Moorer, Walterboro, for appellants.

Hugo S. Sims, Orangeburg, Julian S. Wolfe, Orangeburg, Thomas R. Wolfe, Orangeburg, for respondents.

PER CURIAM.

In the Circuit Court this litigation concerned the estate of the late and lamented W. C. Wolfe, and that of his wife, Mrs. Alma S. Wolfe, the former dying testate, the latter intestate. The mixing of the two estates in one action, which was occasioned by the allegations contained in the answer of the appellants, was unavoidable from their standpoint, and such resulted in a voluminous record, laborious to read and study in order to glean therefrom all testimony relating to the issue now before this Court.

While there are twenty-one exceptions to the decree of the Circuit Judge, two of them (Nos. 18 and 19) relate to the estate of Mrs. Wolfe but are apparently abandoned, the sole issue before this Court, as stated by the respondents and the appellants, being: "Did the devisees (under the will of W. C. Wolfe) procure an absolute devise and bequest by promising the testator, expressly or impliedly, that they would hold the property for the benefit of the widow and all the children of the testator, and afterward refuse to perform their promise?"

The findings and the holdings of the Special Referee (the equivalent of a Master in Chancery), and of the Circuit Judge on this issue are in accord; and after a careful study of the record, we do not find anything therein which would warrant us in disturbing same. It is a fixed rule that this Court will not disturb concurrent factual findings of the Master and trial Judge in an equity case unless such find-ings are without evidence to support them or are against the clear preponderance of the evidence. Alderman v. Alderman, 178 S.C. 9, 181 S.E. 897, 105 A.L.R. 102.

We doubt our ability to improve on the decree of the Honorable E. H. Henderson, Circuit Judge, and therefore adopt and set forth below that portion thereof which decides the issue now presented, as the opinion of this Court:

"This case involves the will of Mr. William C. Wolfe, of Orangeburg, who was one of the most able and distinguished lawyers of our state.

"He had a large practice in Orangeburg and many of the surrounding counties. Such was his unlimited energy that he engaged in many business enterprises looking to the growth and advancement of his city and community. As a result he acquired valuable properties, but most of it was heavily mortgaged. Much of his property was held through stock ownership in holding corporations. Because of the restricted market for real estate and the limited credit obtainable at the time of his death, it clearly appears that on the then existing market a sale of all of his valuable properties would not have brought any great amount over and above his debts, although at the present time the values are considerably higher.

"He died on March 4, 1938. He left surviving him his widow, Mrs. Alma Sawyer Wolfe, and nine children. A short time before his death he called in his son Julian S. Wolfe and dictated his will. The instrument was then duly executed. It provides as follows:

" '1. I give, devise and bequeath all of my property, both real and personal, and wheresoever situate, unto my beloved sons, Julian S. Wolfe and Thomas R. Wolfe.

" '2. I hereby appoint by sons, Julian S. Wolfe and Thomas R. Wolfe, as executors of this my will.'

"The cause was referred to Honorable John S. Bowman, County Judge as Special Referee. After taking the testimony he has filed his report. Honorable M. M. Mann, resident Judge of the First Circuit, disqualified himself; as there was no Judge presiding in that circuit at that time, the cause comes before me under section 37 of the Code, as the Judge of an adjoining circuit, upon exceptions to the report by both the plaintiffs and the defendants.

"The principal contention of the defendants is that Julian S. Wolfe and Thomas R. Wolfe were trustees for the widow and the children of William C. Wolfe, and a decision of this primary question will determine the result of a great many of the exceptions.

"Under their fourth exception and in the oral argument before me, the defendants stated that they do not claim that Julian S. Wolfe and Thomas R. Wolfe are trustees of an express trust, but that under the law and the facts of the case they are trustees of a constructive trust.

"Clearly the will did not name them as trustees of an express trust. The intention of a testator must be ascertained from the language he uses, where it is clear and unambiguous. Where a will is made by a person fully competent mentally to do so, and without any undue influence, as was the case here, the Courts have no power to depart from the plain language employed. No attack has been made upon the will for any cause at all, and so it stands as written.

"Neither does the testimony show an assumption or declaration of an express trust on the part of the two devisees. The defendants do not contend that such is the case, but their contention is that the statements made in certain letters and numerous other facts in the case are evidences upon which the Court of Equity should engraft a constructive trust.

"The law as to constructive trusts is quite well settled by a number of decisions of the Supreme Court.

"In the case of Bank of Williston v. Alderman, 106 S.C. 386, 91 S.E. 296 [297,], the Court quoted the following from Pomeroy Equity Jurisprudence: 'By the well-settled doctrines of equity, a constructive trust arises whenever one party has obtained money, which does not equitably belong to him, and which he cannot in good conscience retain or withhold fromanother, who is beneficially entitled to it; as, for example, when money has been paid by accident, mistake of fact, or fraud, or has been acquired through a breach of trust, or violation of fiduciary duty, and the like. It is true that the beneficial owner can often recover the money due to him, by a legal action upon an implied assumpsit, but in many instances a resort to the equitable jurisdiction is proper and even necessary. * * * It is not essential for the application of this doctrine that an...