majority">

The opinion of the court was delivered by

.McGowan, A. J.

This was an action in the nature of a suit in equity, instituted by F. M. Godbold, as executor, to marshall the assets of the estate of John YanceMecease(b It was referred to Edward Noble, Esq., as referee, to state the assets and the *468creditors according to their legal priorities. To his report both parties filed exceptions, which were argued before Judge Pressley, who rendered his decree after the rising of the court, May 17th, 1880. Written notice of it was served upon the parties. The attorney of Mrs. Vance served Judge Pressley and plaintiff’s attorney with notice of appeal and copy of exceptions within ten days from notice of filing of the decree. The plaintiff served defendant’s attorney with notice of intention to appeal within ten days, and copy of the case, with exceptions, within thirty days, but omitted to serve upon Judge Pressley and the attorney of the opposite party copies of his exceptions to the decree within ten days.

This raises a preliminary question upon a motion to dismiss plaintiff’s appeal upon the ground that copy of his exceptions was not furnished the presiding judge and served upon the attorney of respondent within ten days after notice of decree filed. The plaintiff did file exceptions to the report of the referee, which was neatly identical with the decree, and also printed them in the “ ease ” filed within thirty days. This is not, therefore, a case of surprise, but only a question of technical compliance or non-compliauce with the law.

The right of appeal is valuable, and the law prescribing the manner in which appeals may be prosecuted should be construed liberally. This court has lately had occasion to consider the subject and to be constrained, by force of the provisions of the act of 1878, (16 8tat. 698,) to dismiss appeals in several cases, but this is the first case that has come before us upon motion to dismiss under that act, where every requirement of the act itself had been complied with, and the only objection made was that something else was omitted, supposed to be required by a previous law.

The first and second sections of the act of 1878 cover different classes of cases and contain different requirements. The first section manifestly relates only to “ rulings ” made during term time, and requires “ copy of exceptions to be furnished the presiding judge and served upon the attorney of respondent within ten days after the rising of the court,” &c. The cases provided for by this section and to which these requirements apply are *469generally law eases tried by a jury, but it has been held that the words “ all cases tried in the Circuit Courts ” embrace as well equity cases heard in term time and decided in open court.

The second section is more comprehensive. It provides for cases heard in term time, and also every order, decree or judgment or other matter from which an appeal may be taken, and only requires “ that the appellant or his. attorney shall, within ten days after decree filed, give notice to the opposite party or his attorney of his intention to appeal, and within thirty days after notice shall prepare a case or exceptions, or a case with exceptions, and serve them,” &c.

The decree in this case was in an equity suit and rendered in vacation, and, therefore, as to an appeal, cannot fall within the first section, which applies only to “ rulings ” in cases heard and decided in open court, but under the second section, which, in express terms, includes “decrees.” We suppose to those matters which fall under this section and not the first, only the requirements of this section apply. If so, the plaintiff complied strictly with every requirement of this second section as to notice of intention to appeal and serving “ a case,” and we cannot say that his appeal is waived under the act of 1878, which imposes the penalty of “waiver” only when “the appellant shall fail to perfect his appeal according to the provisions of either of the foregoing sections.” We think there is nothing in the act of 1878 which requires that this appeal should be dismissed.

But it is said that the act of 1878 is not the only law upon the subject; that the second section of that act was not intended as a n,ew law by way of substitution for the old provisions of the code as to appeals, but only as an amendment to them, leaving untouched Section 292 of the code as to the manner of taking an appeal from a judgment rendered by the court, which is in these words: “For the purpose of an appeal (in cases decided by\he court) either party may except to a decision on a matter of law arising upon such trial within, ten days after notice in writing of the judgment in the same manner and with the same effect as upon trial by jury.” Gen. Stat. 637.

“The court” may try law cases, and this section seems to *470apply exclusively to that class of cases, for it speaks only of excepting “ in a matter of law.”

This court is not limited to a correction of errors at law, but in “cases in chancery” has appellate jurisdiction, and may review and reverse findings of fact by the court below. Besides, there is grave doubt whether this provision is not repealed by the act of 1878, which deals exhaustively with the same subject, and seems to have been intended as a system in itself. As was said in the case of Scurry v. Coleman, ante p. 166: “ The law governing appeals to the Supreme Court was changed by the act of 1878, as to the time within which an appeal shall be perfected, which then expressly repeals all acts and parts of acts inconsistent therewith. It covers the whole subject of appeals to the Supreme Court. Are the provisions of the act of 1878 inconsistent with those of the code before referred to ?” So, we repeat, as to the section of the code under consideration here. It has been held that the act of 1878 “ does not profess to be an amendment of the code.” Rogers v. Nash, 12 S. C. 560. This court, however, has never expressly decided the question as to Section 292 of the code, and we think it is not necessary to do so in this case. If that section is not superseded by the act of 1878, and embraces “cases in chancery”.as well as law cases tried by “the court,” still, properly construed, there is nothing in it which requires the dismissal of this appeal. The section does not, in terms, require copy of exceptions to be furnished the presiding judge, but allows either party to except “ in the same manner and with the same effect as upon trial by jury.” In construing these words we must have reference to the law as it then stood as to exceptions upon “trial by jury.” At the adoption of the code exceptions had to be made in open court. It was not necessary that they should be in writing, but enough to have them noted on the judge’s minutes and settled after, as prescribed by the rules of court. The idea of furnishing copy of exceptions to the presiding judge was suggested for the first time in the act of 1878, the first section of which requires copy of exceptions to be furnished the judge for the reason that, in cases provided for by that section, ten .days to except was allowed. We do not think this section of the code can be interpreted by reference to the act *471of 1878, and enlarged by incorporating into it provisions of an act passed long after, and which makes entirely new regulations upon the subject.

Whether this section is superseded or not, it is not now necessary, in appealing from a decree in chancery rendered in vacation, to furnish the judge who rendered the decree with a copy of the exceptions thereto. This view of the law is fortified by reason. We are unable to understand the object in requiring copy of exceptions to be furnished the judge, whose whole decree is in writing, in a suit in which he is not expected to make a report or settle a case.

As to the service of exceptions upon the attorney of the opposite party, claimed to be necessary, the notice of appeal, taken in connection with the full exceptions to the referee’s report and in “ the case,” may be considered as a technical compliance.

The notice was in these words: “ Take notice that the plaintiff will appeal to the Supreme Court from the decree of Judge B. C. Pressley, rendered May 17th, 1880, and move it to reverse the same.” Considered as_ an exception, this is certainly not full, but it is more than a mere notice of an intention to appeal. It is true, as stated in the case of Norton v. Livingston, ante p. 177: “ That the points of law, wherein error is charged, should be specifically stated, otherwise the court has no guide as to the points contested;” but that was a law case, tried by a jury, and the only exception'was to “ the charge of the judge.” This was an equity suit, and the whole decree in writing. The motion to dismiss the appeal is refused.

John Vance executed his will April 6th, 1872, and by it gave his wife, Nuella E., the tract of land on which he then lived, with the furniture and other articles thereon, and also the sum of $2000, to be paid to her as soon after his death as possible; the whole to be in bar of dower in his lands. In 1874 he added a codicil to his will, whereby he made the said legacy a charge upon his old homestead. The wife of testator objected that the. provision was revocable and did not make her safe in renouncing,dower in certain lands which her husband wished to -sell. To satisfy her upon this subject, he executed a deed, June 21st, 1875, which was delivered and recorded, whereby he “ gave, *472granted, released, conveyed and confirmed ” the property which had been given by the will, reserving to himself the possession and use of it for life; provided, that it should not bar her right of dower unless she realized the whole property and money. The testator died in April, 1877. F. M. Godbold, son-in-law of the testator, qualified as executor and instituted this proceeding, 'charging that the widow had received the $2000 in the lifetime of the testator, and demanding an account for other moneys alleged to have gone into her possession during the life of her husband. The executor presented accounts against the estate, running from 1869 to 1877, and the questions in the case arise out of these accounts and the claim of the widow.

The referee reported as to the claim of the widow, “ that there was no evidence that such money was or is in her possession, or that she had received the two thousand dollars. Her claim under the deed of gift of June, 1875, is, therefore, sustained as unpaid. * * * Although the claim is, in form, a gift, and not strictly a debt, yet it is in lieu and bar of dower, and has a valuable consideration to support it,” and he accordingly placed the claim in the list of debts established. He reported as to the claim of the executor that “ portions of Mr. Godbold’s claims are barred by the statute of limitations, namely, the accounts for 1869 and 1870, amounting to one thousand and eighty-seven dollars and six cents, but no exception has been taken to them on that ground, and they have been allowed,” &c.

Both parties excepted to the report. Judge Pressley overruled all the exceptions on both sides and confirmed the report, except as to the accounts of the executor for the years 1869 and 1870, which he held were barred by the statute of limitations. He adjudged “ that Nuella E. Vance has the right to retain the laud and personal property thereon, as reported by the referee; also, that she is entitled to receive from the estate of John Vance the sum of two thousand dollars, with interest from the probate of the will, or, failing to receive the same, that she is entitled to her dower out of the real estate heretofore sold or to be sold by the order of the court.” He remitted the case to the referee to inquire and report what assets are liable to the payment of her *473claim, and whether she elects to look to such assets for payment or take her dower.

Both parties filed exceptions to the decree, and the appeal comes to this court. The exceptions are numerous and will not be considered seriatim, but according to the subject matter.

1. The claim of the executor as a creditor of the estate. On one side it is insisted that the accounts were not properly proved, and on the other that they were all established, and it was error to apply the bar of the statute to any part of them. The Circuit judge concurred with the referee that they were established. When such concurrence exists, it is the practice of this court to affirm the judgment, unless it is without any testimony to sustain it, or is manifestly against the weight of the evidence. We cannot say that there was no testimony tending to prove these accounts. Upon the subject of applying the statute to the accounts for the years 1869 and 1870, we also agree with the Circuit judge. The creditor was executor of the estate, which it was his duty to protect. It is against the policy of the law to' allow an executor to waive the statute against himself as creditor. “ An administrator cannot retain, for a debt of his own, which was barred by the statute of limitations at the death of his intestate.” Cooper v. Peyton, Rich. Eq. Cas. 259.

2. As to the claim of Mrs. Vance. All the other exceptions relate to this subject.

1. It is contended that the $2000, conveyed by the deed, was received by Mrs. Vance in the lifetime of her husband, and the fact that shortly before hi§ death, in April, 1877, he gave her a note for $50, affords conclusive proof that she was paid in full. The presumption claimed from giving, the note could only arise as to a debt due and payable at the time. By the deed, Mrs. Vance was not to receive the $2000 until testator’s death. The referee says: “The evidence is not sufficient to sustain the charge; indeed, there is no evidence to support it, except the possession, by the testator in 1870, of upwards of seven thousand dollars, and in 1871 of upwards of two thousand dollars.” The judge says : “I do not find any testimony sufficient to-sustain said allegations.” In this state of the case this court cannot undertake to review the testimony and disturb the decree. See *474Rep. Shand’s note, 12 S. C. 612. We have looked carefully through the testimony and fail to find any direct evidence of payment.

2. It is insisted that the paper called a deed, purporting to convey property to be delivered at donor’s death, is testamentary in its character, and at least, in part, void for the want of three witnesses, or if the deed is good as to the tangible property it is certainly void as to the $2000 in money, which cannot be identified and has no existence, except as a measure of value. The paper, in form a deed, purported to convey a particular sum of money — to give a present interest, with enjoyment postponed until donor’s death. It does not appear that any particular dollars were present or delivered, but the deed is under seal and was delivered. We suppose that the thing itself was not so earmarked that the donee could have taken possession at the death without resort to the executor, but was rather in the nature of a ■direction to the executor to pay. The purpose of the parties was to make the provision irrevocable, and that intention must be carried out if it can be done without violating any principle of law. Without going into the question whether money, like ordinary personal property, is capable of being conveyed in presentí to take effect in futuro, there is no doubt that this money would have been recoverable if John Yance had given an obligation for it in the form of a note or bond without three witnesses. That the payment was appointed to be made at the death of the obligor, is not, of itself, an objection to the papers being considered an irrevocable obligation. 3 Term 322; 5 Term 381; 8 Term 483. Must the intention fail only for the reason that the paper is in form a deed and not a bond ? “ An instrument intended to take effect at the donor’s death, but not having the formalities of a will, will not be held testamentary, and therefore void, if it can operate in some other character, which appears to have been intended.” Carter v. King, 11 Rich. 125, and authorities there cited.

3. It is further insisted that the conveyance of the same property by deed was an ademption of the devises and legacies, and that in no event can Mrs. Yance have dower either by election or to make up the full sum of $2000. The doctrine of ademp*475tion does not apply to devises, and is always a question of intention. Allen v. Allen, 13 S. C. 512. The purpose of the will, the codicil, and the deed, was the same, and whatever Mrs. Vance receives under the deed cannot, of course, be again claimed under the will; but the deed itself provides that “ should the estate become insolvent, so that my said wife shall fail to receive the property and money herein conveyed to her, or any part thereof, then her right and claim of dower shall not be barred.” We do not think that the mere acceptance of the deed could be an ademption of anything except in so far as the property covered by it was actually received in the lifetime of the testator. It was the intention of the testator to secure to his wife, in any event, the whole property given. He gave it by will, fortified it by a codicil, and finally made it irrevocable by deed. This anxious intention cannot be defeated by the application of the doctrine of ademption. If the provision of the deed should fail in whole or in part, it would be in violation of the terms of the deed itself to make that which was ineffectual for the purpose intended effective only in defeating another provision for the same purpose. Dawson v. Dawson, Rice’s Eq. 243; Cheeves’ Eq. 148; Floyd v. Floyd, 3 Strob. 54; Pringle v. McPherson, 2 Brev. 290. Revocation is a question of intention. In the case Ex parte Earl of Ilchester, 7 Ves., Jr., 374, Lord Alvanly examines this doctrine at great length, and concludes with these very strong words: “ There is, therefore, no authority in the way of this proposition, that an instrument imperfect to the point to which it is directed, shall not operate as a revocation of a will duly executed.”

The Circuit decree is affirmed and the appeal dismissed.

Simpson, C. J., and McIver, A. J., concurred.

Citation profile

Relationships

How this case has been treated — in progress