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The opinion of the Court was delivered by
Mr. Justice StabeEr.
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This action involves the construction of the will of William J. Fleming, a citizen of Laurens county, who died in March, 1921. We have made a careful study of the record in the casé, and are satisfied with and approve the conclusions expressed by' the circuit Judge in his well-considered decree — with this explanation: We do not consider the capacity in which Mrs. Bettie Fleming held the estate passing into her hands, whether as trustee or otherwise, material; it is clear that she was given under the ninth item of the will its mere management for her proper support during her lifetime, with full power of disposition; and as she failed to exercise the powers granted, the estate remaining at her death passed under the will as decreed by the Court below. Under the construction given, item ten is preserved in accordance with the manifest intention of the testator.
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All exceptions are overruled, and the judgment of the circuit Court is affirmed.
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Mr. Chief Justice Watts and Messrs. Justices Cothran, Brease, and Carter concur.
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Case posture Posture Before FEATHERSTONE, J., Laurens, June, 1928. Affirmed.Action by John Fleming Blakely, by L.P. Blakely, his guardian ad litem , and another, against George H. Blakely and another, individually and as administrators of the estate of William J. Fleming, debonis non with will annexed, and as administrators of the estate of Mrs. Bettie Fleming, and others, involving the construction of the will of William J. Fleming, deceased. From the judgment, defendants appeal.
Items 9 and 10 of the will, the report of O.L. Long, referee, and the decree of Judge Featherstone of the circuit Court directed to be reported, were as follows:
Item 9, It is my will and desire that my beloved wife, Bettie Fleming, whom I hereinafter constitute and appoint sole executrix of this my last will and testament shall immediately after my death take full charge and possession of all the rest and residue of my property, real, personal, and mixed, of every kind, and description, and wheresoever the same may be situate or located, and shall manage the same in such manner as her good judgment shall dictate for the best interest of herself and of my estate, and to this end I hereby vest in her full power and authority according to her best judgment to sell and dispose of any, or all of my property, both real and personal, not hereinbefore disposed of, without any order of the Court so to do, and I further give her, my said executrix, full power and authority to convey any of said real estate not hereinbefore disposed of, in fee simple, and the right, powers and authority to invest, for the benefit of my estate, any moneys that may come into her hands from time to time from my estate in any kind of property, real or personal as she may deem best. I also give her full power and authority to lend money belonging to my estate, according to her best judgment, and if necessary to borrow money in managing my estate, she may pledge or mortgage any of my property to secure the amounts borrowed. It is my will and desire, and express direction that she shall support herself and her nephew, John Fleming Blakely, from my
estate, in a manner corresponding with my estate and situation in life, and from my estate shall give the said John Fleming Blakely such education, as in her good judgment, he should have. The support and maintenance of the said John Fleming Blakely shall cease upon his attaining his majority, unless my said wife shall otherwise decide. It shall not be necessary for my said wife to apply to any Court for an order, or permission, to make a change, or changes, in investments, or otherwise manage and handle the said rest and residue of my estate. It is my express desire, will and wish that my said wife in the management of my estate shall not be held accountable to any one. I also give her, my said wife, full power and authority to dispose of such of my estate as may come into her possession and charge under this item of my will by will or otherwise, according to her best judgment. It is my purpose and intention by this paragraph of my will to confer upon my beloved wife full power and authority to do as she pleases with my said estate as may come into her hands or charge hereunder.
Item 10. Upon the death of my wife, it is my will and desire, and I hereby will, give, bequeathe and devise that the rest and residue of my estate then remaining, and on hand shall be disposed of as follows, to wit: To the Board of Trustees of Erskine College, Due West, S.C. the sum of Twenty-five Thousand ($25,000); 2nd. To the Board of Trustees of the Orphanage of the Associate Reformed Presbyterian Church, to be established and maintained as now projected in the East, the sum of Five Thousand ($5,000) Dollars. If no such orphanage shall be established by the time this provision of my will takes effect, then the bequest to said orphanage shall go as otherwise provided for in this item; 3rd, all the rest and residue of my estate, real, personal and mixed shall be sold and the proceeds equally divided into two (2) parts, and one part thereof I will, bequeathe and devise unto my brother and sister to be equally divided amongst them, share and share alike, and the other part I
will give, and bequeath to the brother and sisters of my said wife to be equally divided amongst them, share and share alike. The child or children of a deceased brother or sister to take the share his or their parent would have taken if living.
REPORT OF REFEREE
The above entitled action was brought by the plaintiff to recover interest on a certain legacy bequeathed to him by the will of Wm. J. Fleming and also to recover for support alleged to have been provided for him by said will. The matter was referred to me to take the testimony, to decide and report the accounts between the estates of Wm. J. Fleming and Mrs. Bettie Fleming and to state and report the accounts of the administrators of the estates of Wm. J. Fleming and Mrs. Bettie Fleming. The matter resolved itself into a construction of the will of Wm. J. Fleming, and by consent of counsel, the scope of the reference was broadened and I was ordered to take the testimony, decide all issues of law and fact, with leave to report any special matter. It appears from the testimony that Mr. Wm. J. Fleming died on the ____ day of March, 1921, leaving his last will and testament by which he devised and bequeathed a large estate, both real and personal, to various parties named therein. Soon after his death his will was duly admitted to probate in the office of the Probate Judge for Laurens County, and the executrix named therein, who is his wife, Mrs. Bettie Fleming, duly qualified and entered upon her duties as such. The estate of Wm. J. Fleming was duly appraised, which is now on file in the office of the Probate Judge. It seems that Mrs. Bettie Fleming as executrix, took charge of the estate and managed the same until February 13, 1925, when she departed this life intestate. Soon after her death George H. Blakely and R. Hall Fleming qualified as administrators, de bonis non C.T.A. upon the estate of Wm. J. Fleming, deceased, and also administrators of the estate of Mrs. Bettie Fleming, deceased. Mrs. Bettie Fleming during the time she
managed the estate of Wm. J. Fleming made no returns to the Probate Court. After her death the administrators of both estates made returns on which they listed a portion of the estate in the name of Wm. J. Fleming and another part thereof in the name of Mrs. Bettie Fleming. The property which should be allotted to each estate depends entirely upon the construction of the will of Wm. J. Fleming, a verified copy of which is hereto attached and made a part of this report. This leads us up to the construction of the will of Wm. J. Fleming, deceased.
The testimony shows that the debts of Wm. J. Fleming provided for in item two of the will have been paid. It further shows that the bequests contained in items 3, 4 and 5 of the will have been paid and also that the land devised to the A.R.P. Church, of Ora, in item 6, of the will has been delivered to the proper officers of the church. This leads us down to the first question to be decided in this case. In item 7 of the will, the testator devised to John Fleming Blakely, three hundred and seven (307) acres of land. He provided that should the said John Fleming Blakely die without heirs of his body surviving him, the said land should revert to and become a part of his estate to be disposed of as provided by the residuary clause of said will. It is admitted by counsel that the said John Fleming Blakely took a fee defeasible in said tract of land, subject to be defeated upon him dying without heirs of his body surviving him. This leads to the executory devise which is an interest in the land belonging to the estate of Wm. J. Fleming. This interest may be valuable or it may not be, but it is an interest in the land and should be disposed of in the same manner hereinafter provided for disposition of other real estate of Wm. J. Fleming, that is, it should be sold and the proceeds disposed of as is hereinafter recommended for the proceeds of sale of other real estate to be disposed of.
In item 8 of the will, the testator bequeathed to John Fleming Blakely, the sum of Ten Thousand ($10,000.00)
Dollars (to be paid to him when he reaches the age of twenty-one years or upon the death of my beloved wife, if she should die before he attains his majority). John Fleming Blakely has not yet reached his majority. It appears that on July 24, 1926, the administrators paid to John Fleming Blakely, Three Thousand ($3,000.00) Dollars on the legacy and on October 29, 1927, they paid to him the sum of Seven Thousand ($7,000.00) Dollars. In this action, the said John Fleming Blakely by his guardian ad litem , contends that he is entitled to interest on the entire amount of the legacy from the date of the death of Mrs. Bettie Fleming, to wit, February, 13, 1926, until the money was actually paid. The law in regard to the payment of interest on specific pecuniary legacies, as I understand it, is as follows, that special legacies will bear interest from twelve months after the date of the death of the testator, unless some specified time is named for the payment of said legacy and if a specified time is named, the payment thereof will bear interest from that date. Item 8 of the will provides that the legacy should be paid upon the death of Mrs. Bettie Fleming. She died on February 13, 1926, which is a day certain and I hold that the Ten Thousand ($10,000.00) Dollars should bear interest from February 13, 1926, until paid; however, I do not think that interest should be computed on interest. I have calculated interest on Ten Thousand ($10,000.00) Dollars, from February 13, 1926, to July 24, 1926, at which date, Three Thousand ($3,000.00) Dollars was paid on this legacy. I then calculated interest on the remaining Seven Thousand ($7,000.00) Dollars from July 24, 1926 to October 29, 1927, at the time of the payment of the Seven Thousand ($7,000.00) Dollars. This interest was calculated at the legal rate which is seven per cent., and I find the amount of interest so calculated, amounts to Nine Hundred Thirty One and 54/100 ($931.54) Dollars, which amount I find should be paid to the guardian of John Fleming Blakely as interest on his legacy.
We now come to the real difficult part of said will. This is contained in item 9 thereof. In the construction of a will
the first object should be to ascertain the intention of the testator and that intention must be gathered from the will itself giving full effect if possible to each and every part of the will and assisted if needs be, by the circumstances which surrounds the testator at the time of the execution, the condition of his family as well as the size and condition of his estate. The first question I wish to dispose of in connection with item 9 of the will is the question of support and education of John Fleming Blakely. The testimony shows that Mr. and Mrs. Wm. J. Fleming took John Fleming Blakely, who was a nephew of Mrs. Fleming, when he was a mere infant and raised him just as if he were their own child. In fact the relation between them is practically the same as parent and son. The will provided in item 9 as follows:
It is my will and desire and expressed direction that she (referring to his wife) shall support herself and nephew, John Fleming Blakely, from my estate in a manner corresponding with my estate and situation in life and from my estate shall give the said John Fleming Blakely, such education as in her good judgment, he should have. The support and maintenance of the said John Fleming Blakely shall cease upon his attaining his majority, unless my wife should otherwise decide. Mrs. Bettie Fleming died before John Fleming Blakely entered College and when he was about seventeen years of age. Considering the will as a whole I am inclined to believe and so hold that the intention of the testator was that John Fleming Blakely should be educated and supported out of his estate until he was twenty-one years of age, at which time he wished to start him out under his own sails, with Ten Thousand ($10,000.00) Dollars in cash bequeathed to him in item 8 of the will and also three hundred and seven (307) acres of land devised to him in item 7. He did not intend for his education or support during his minority to come from these items. It appears from the testimony that since the death of Mrs. Fleming, John Fleming Blakely has entered Erskine College, from which he will graduate with a four
years course about one year hence, and before he reaches the age of twenty-one years. He spends the summers with his father, L.P. Blakely, near Ora, South Carolina. I further find that from the estate of Wm. J. Fleming, the cost of his college education at Erskine and for his support during the summer months should be paid from the estate of Wm. J. Fleming. The amount which I find to be reasonable and proper is arrived at as follows, cost at Erskine College per year $650.00, traveling expenses per year, Thirty ($30.00) Dollars, board during three months when school is not in session, the sum of Ninety ($90.00) Dollars, making a total of Seven Hundred and Seventy ($770.00) Dollars per year, and for a period of four years the sum of Three Thousand and Eighty ($3,080.00) Dollars. It is contended by his counsel that he is entitled to Forty-five ($45.00) Dollars a year for spending money during the vacation. I could not agree to that. I feel that any boy should be required to do some work during his vacation and thereby earn his spending money.
This brings us up to item 10 of the will which has really given me more difficulty than any other part of the will. It might be noted in the beginning that the bequest mentioned in the second clause of this item has been eliminated for the reason that the orphanage mentioned therein has never been established. The attorney for Erskine College contends that the Twenty-five Thousand ($25,000.00) Dollars legacy provided in the first clause of this item, is a charge on all of the property of the estate of Wm. J. Fleming, both real and personal, and the attorneys for the two families admit that it is a charge on whatever personal property that is still in the estate, but denies that it is a charge on the real estate. In the case of Allen v. Ruddell , 51 S.C. page 366, 29 S.E., 198, it is said: Undoubtedly the general rule is pecuniary legacies must be paid out of the personal estate and lands devised are not chargeable with the payment, but while this is the general rule, the testator may unquestionably change it
by providing that the legacies shall be paid out of the real estate devised and make a charge thereon. The burden, however, is upon those who seek to change the general rule which must be met either by showing that the testator has in expressed terms so directed or an intention to that effect is clearly inferred from the language used in the will. It is therefore a question of intention which is to be gathered from the language used in the will, read in the light of the surrounding circumstances. The counsel seems to be agreed on the law as relating to this, but the difficulty comes in applying the law to the will in question as written. There are a number of cases to guide us, but there is seldom any two wills written exactly alike or executed under the same circumstances. For this reason it is necessary as nearly as possible, to place one in the shoes of the testator and try to see what his intentions were at that time. It appears from the testimony that at the time of making the will Wm. J. Fleming owned a large amount of stocks and bonds and other personal property, which at the prevailing prices at that time would have been much more than sufficient to pay the special legacies provided for in his will. The testator thought that he had enough personal property to pay off all special legacies and have a balance to be divided amongst his wife's brothers and sisters. The first part of item 10 reads as follows: Upon the death of my wife, it is my will and desire and I hereby will, bequeath and devise that the rest and residue of my estate then remaining on hand, shall be disposed of as follows, to wit: to the Board of Trustees of Erskine College, Due West, South Carolina, the sum of Twenty-five Thousand ($25,000.00) Dollars. Erskine College argues that the rest and residue of my estate means all of my estate, both real and personal. To see just what he intended by this, it is necessary that we consider the same in connection with the third clause which reads as follows: All the rest and residue of my estate, real, personal and mixed, shall be sold and the proceeds equally divided into two parts, one part thereof, I
will, bequeath and devise unto my brother and sister, to be equally divided amongst them, share and share alike, and the other part, I will, give and bequeath unto the brothers and sisters of my said wife, etc. The law as above stated is clear that the pecuniary legacy to Erskine College is not a charge on the lands unless this item specifically makes it so or an intent can be clearly inferred from the language used in the will. All of the other specific legacies were not made an express charge on the lands all of which have been paid out of the personal property. The first time anything has been said in the will about the sale of any real estate, except the power given to Mrs. Fleming to sell, is found in the third clause of item 10. If Mr. Fleming had not thought the personal estate would be sufficient to pay the legacy to Erskine College, and if he had wished the same to be a charge on the lands, it seems to me that he would have said so in the first residuary clause or in the words immediately preceding it, this he did not do. I am of the opinion and so find that Mr. Fleming thought there would be plenty remaining of his estate to take care of the pecuniary legacy to Erskine College and that he did not intend for same to be made a charge on his real estate. The lands have already been sold by the administrators and brought the sum of Twelve Thousand Four Hundred and Fifty ($12,450.00) Dollars. I find that the entire personal estate or so much thereof as may be necessary, be applied to the payment of the special pecuniary legacy of Twenty-five Thousand ($25,000.00) Dollars, to Erskine College. That the proceeds of sale from the real estate be divided amongst the brothers and sisters of Mr. and Mrs. Wm. J. Fleming, in accordance with the provisions of the third residuary clause of item 10 of the will, provided, however, that all just claims proved against the estate be paid out of the personal property and that the cost of this action, the cost of administration, including a reasonable attorney's fee to the attorneys for the administrators, be paid proportionately from the personal estate and from the proceeds of the sale
of the real estate. I recommend that all stocks and bonds on hand should be sold immediately and converted into cash by the administrators, the one hundred and six (106) acre tract of land known as the Blakely Place, should be sold and the proceeds of sale placed in the personal account, the executory devise in the three hundred and seven (307) acre tract devised to John Fleming Blakely, should be sold and the proceeds of sale be placed in the real estate account. It appears from the testimony that there is a ready market for all of the stock held by the administrators with the probable exception of the Bank Stock. It is clear from the testimony that the personal estate after payment of claims and its proportionate share of the cost will be insufficient to pay the full amount of the pecuniary legacy to Erskine College. I therefore recommend that if the Bank Stock cannot be sold to an advantage that Erskine College be permitted to take the same as part payment of the legacy.
There seems to be only one other question presented for determination in this case and that involves the liability of the administrators for a fair value for the lands sold at the administrator's sale, which was bid in by Dr. R.H. Bryson and in his purchase it is alleged that the two administrators were individually interested. It is the law, of course, that the administrator can purchase at his own sale, but that he will be liable for a fair value of the said lands so purchased. There was some testimony to the effect that the administrators are interested in the lands so sold, however, the lands were sold at public auction after due advertisement. A large crowd was present at the sale and there was no evidence of a chilling of the bidding. I hardly know of a better way to determine the market value, or a fair value of lands. I therefore find that the lands brought their fair value and that the administrators are not liable personally to the estate for any amount or account thereof.
I summarize my findings as above indicated, I find as a matter of law and fact: (1) That the executory devise in the
three hundred and seven (307) acres of land willed to John Fleming Blakely, should be sold and the proceeds of sale be considered real estate for the purpose of distribution. (2) John Fleming Blakely should be allowed simple interest on his legacy of Ten Thousand ($10,000.00) Dollars, from the date of the death of Mrs. Bettie Fleming, February 13, 1926, at the rate of seven per cent. per annum, until the same was paid, the amount of interest calculated by me, should be Nine Hundred Thirty-one and 54/100 ($931.54) Dollars. (3) That John Fleming Blakely should be paid from the personal estate of Wm. J. Fleming the sum of Three Thousand and Eighty ($3,080.00) Dollars, for his education and support for a period of four years. (4) That all personal property including stocks and bonds, money in the bank and all other personal property in the possession of Mrs. Bettie Fleming at the time of her death, either in her own name or in her name as executrix, was trust property and belongs to the estate of Wm. J. Fleming. (5) That the one hundred and six (106) acre tract of land, known as the Blakely tract, standing in the name of Mrs. Fleming, was held by her in trust for the estate and should be sold and the proceeds of sale be placed in the personal estate of Wm. J. Fleming, as the purchase money therefor was taken from his estate, (6) That all claims should be paid out of the personal estate, and the cost of this action and the cost of administration, including a reasonable attorney's fee, and the attorneys for the administrators should be paid proportionately out of the personal estate and real estate and that after the payment of these amounts, Erskine College should receive the sum of Twenty-five Thousand ($25,000.00) Dollars from the personal estate, or so much as available. And that if there is any balance of the personal estate and the proceeds of sale of the real estate, including the executory devise, be distributed according to the provisions of the third clause of item 10 of the will. (7) The administrators are not in any way responsible personally for any amount on account of sale of
the real estate, in which they are alleged to have an interest.
All claims have not yet been passed on and I therefore recommend that the cause be recommitted to me to finally pass on the claims and for a final settlement according to the recommendations herein found.
The testimony taken at the various references together with a certified copy of the will and all exhibits are submitted. All of which is respectfully submitted.
DECREE
The above stated action was brought by the plaintiff for the purpose of securing a construction of the last will and testament of William J. Fleming, late of Laurens County in said State, and to recover under the construction of said will as contended for by the plaintiff the legacy of Ten Thousand ($10,000.00) Dollars bequeathed to John Fleming Blakely under item 8 of the will and further to recover a sum of money for the support and education of the said John Fleming Blakely alleged to be due and payable to him under the terms of item 9 of the said will.
Most of the defendants answered the complaint. The defendant, the Trustees of Erskine College, answered alleging that all of the property and monies in the hands of the administrators of William J. Fleming and all monies, stocks, bonds, and real estate standing in the name of Mrs. Bettie Fleming at the time of her death are in fact the property of the estate of William J. Fleming and as such charged with the payment of the legacy of Twenty-five Thousand ($25,000.00) Dollars bequeathed to it under the terms of the 10th item of the said last will and testament. It is further contended by this defendant that the said John Fleming Blakely is not entitled to be educated from the estate of William J. Fleming for the reason that Mrs. Bettie Fleming died before he was prepared for college and that under item 9 of the will he was to receive only such education as she should think proper and give him during the term of her management of
the estate of William J. Fleming, which was during the term of her life. It denies that the estate of William J. Fleming remaining undisposed of at her death should be charged with the education of the said John Fleming Blakely. The other defendants take a contrary view.
The defendants as administrators of the estate of William J. Fleming with his will annexed, and also as administrators of Mrs. Bettie Fleming, and some of the defendants, answered the complaint contending that the property, real and personal, standing in the name of Mrs. Bettie Fleming at the time of her death was her individual property. Two reasons have been urged to sustain this contention — the one that by the terms of item 9 of the will the said Mrs. Bettie Fleming was given an absolute title to the property formerly of William J. Fleming; and second, that under the powers given to the said Mrs. Bettie Fleming by the terms of item 9 of the said will she had the right to convert the property to her own use and establish title therein in her own name as to bar the legatees of William J. Fleming from any interest therein.
After issue joined, it was referred to O.L. Long, Esquire, as special referee, to take the testimony and to report thereon his findings of fact and conclusions of law, and especially to state the accounts between all parties, and as between the estates of William J. Fleming and Mrs. Bettie Fleming. The referee has taken the testimony and has filed a comprehensive report in this action, passing upon the issues raised before him. The case was heard by me at the recent term of the Court of Common Pleas upon exceptions to this report, all parties having appealed therefrom.
As I view the case it will serve no good purpose to take up the numerous exceptions one by one. The case may be disposed of by a decision as to a few general questions. The Court has reached the following conclusions with regard to the questions raised by the various exceptions:
First: The Court is satisfied with the calculation of interest due upon the legacy of Ten Thousand ($10,000.00) Dollars
bequeathed to the plaintiff, John Fleming Blakely, and the sum reported by the special referee, the Court finds to be correct.
Second: The Court concurs in the finding of fact by the special referee that all of the property, including money, real estate, stocks, bonds, and choses in action, standing in the name of the estate of William J. Fleming, as well as that standing in the name of Mrs. Bettie Fleming, including sixty (60) shares of stock of Union Buffalo Cotton Mill standing in the name of Mrs. Bettie Fleming and the tract of land of one hundred and six (106) acres standing in her name, is in fact the property of the estate of William J. Fleming, and as such is governed by the terms of his will and passes under the provisions thereof. The testimony shows that Mrs. Bettie Fleming had no estate of her own and that the sixty (60) shares of stock standing in her name in Union Buffalo Cotton Mill and the one hundred and six (106) acres of land which she bought were bought by her and paid for by her out of the money of the estate of William J. Fleming, and that a trust resulted in the said property in favor of the estate of the said William J. Fleming. The monies arising from the sale of stocks, bonds, and other property of the estate of William J. Fleming, and now on hand and standing in the name of either of the said estates is the property of the estate of William J. Fleming as already declared, and must be disposed of in accordance with the terms of his last will and testament. In this connection the Court concurs also in the construction of item 9 of the will as made by the special referee. Under item 9 of the will Mrs. Bettie Fleming was given the management of the estate of William J. Fleming as trustee thereof and might have disposed of the estate at any time during her trusteeship in accordance with the terms of that item. However, Mrs. Fleming was given no personal interest in the estate other than the right of a proper maintenance therefrom in accordance with her own ideas. She did not have authority, in the opinion of the Court, to convert
any of the property of the estate of William J. Fleming into her own and thus build up an estate of her own at the expense of the estate of William J. Fleming, and thereby defeat the legacies and other provisions of his will. I cannot hold that she took a fee simple title in the said property as contended for by one of the counsel, although his argument was very persuasive. The will of William J. Fleming was drawn by a careful and painstaking lawyer, one of the ablest in the whole State, and one who knew well how to convey an estate in fee simple had the testator so desired. The fact that the testator, under the direction of his counsel, did not convey the property to Mrs. Bettie Fleming directly in fee simple form, is evidence to me that he did not intend that she should have any greater personal interest in the estate than the right to a proper maintenance therefrom as has already been indicated. Neither does the Court consider that the sale of the said stocks of the estate and the transfer of the proceeds of sale to her personal account is a compliance with the terms of item 9 of the will, giving her authority to dispose of the property by will or otherwise. Such acts do not amount to disposition of the property of the estate of William J. Fleming within the terms of said Section.
Third: The Court likewise concurs in the findings of the special referee that the sum of Three Thousand Eighty ($3.080.00) Dollars is necessary for the support and education of John Fleming Blakely until he reaches the age of twenty-one years, and that under the terms of item 9 of the will the said sum should be paid in the manner hereinafter set forth for his proper education and support until he arrives at that age.
Fourth: The Court, however, does not concur in that part of the report of the special referee which holds that the legacy given to Erskine College by the 10th item of the will is a charge only on the personal estate. By the terms of item 10 of the will it was clearly the intention of the testator to make the legacy given to Erskine College a charge upon all of the
estate of said William J. Fleming, including the real property as well as personal estate, still remaining after the death of Mrs. Bettie Fleming. Such being the case, the defendant, the Trustees of Erskine College, is entitled to an order requiring a sale of all of the property of the estate of William J. Fleming, including as has been already stated, all of the property, real and personal, stocks, bonds, and choses in action, standing in the name of Mrs. Bettie Fleming, and the application of all money and the proceeds of sale of said property whether standing in his or her name to the payment of its legacy of Twenty-five Thousand ($25,000.00) Dollars, with interest thereon at seven per cent. (7%) from the date of the death of Mrs. Bettie Fleming.
Fifth: The referee has failed to pass upon claims filed against the estate of William J. Fleming and it is necessary that the case be recommitted to him for the purpose of passing upon the claims already filed and such claims as may hereafter he filed against the said estate, including the amount of commissions to which the administrators of the estate of William J. Fleming are entitled.
It is therefore ordered, adjudged, and decreed:
First: That after paying the costs and disbursements of this action, including the counsel fees heretofore ordered and all debts established against the estate, including the commissions found due and payable to the administrators of the estate of William J. Fleming with his will annexed, the administrators of the said William J. Fleming, with his will annexed, will next pay to the duly appointed guardian of John Fleming Blakely the interest due upon his legacy under the 8th item of the said will amounting to the sum of Nine Hundred Thirty-one and 54/100 ($931.54) Dollars.
Second: Having already found from a consideration of the provisions of the will of the said William J. Fleming and from the facts and circumstances surrounding him at the time of the making of his will that it was the intention of the testator, William J. Fleming, that his estate should be
chargeable with the support and education of John Fleming Blakely, until he reached the age of twenty-one years, and that the same should be paid from his estate, and that such payment for the support and education of the said John Fleming Blakely was not dependent upon the survival of Mrs. Bettie Fleming until the said John Fleming Blakely reached his majority, it is
Ordered that the said sum of Three Thousand Eighty ($3,080.00) Dollars, found by the referee to be a proper amount for the support and education of the said John Fleming Blakely until he reaches the age of twenty-one years, be next paid over from the estate of the said William J. Fleming in the following manner, to wit:
It appearing that the said John Fleming Blakely has already attended Erskine College for two years, it is
Ordered that one-half (1/2) of the same amount, to wit, the sum on One Thousand Six Hundred Forty ($1,640.00) Dollars shall be paid by the administrators immediately to the guardian of the said John Fleming Blakely. The remaining sum of One Thousand Six Hundred Forty ($1,640.00) Dollars the administrators shall hold in their hands subject to the charge in favor of the said John Fleming Blakely, and said sum shall be paid over to L.P. Blakely as his guardian for his support and education and college expenses for the remaining two years of his college course, the same to be paid in installments, semi-annually, as the said John Fleming Blakely may so conduct himself in the prosecution of his studies at Erskine College as shall merit the payment of the remaining portion of the said legacy, and the administrators may apply to the Court for such orders as may be proper to carry out the terms of the said will in accordance with this decree. It is adjudged that the claims in favor of the said John Fleming Blakely have priority in their payment over the legacies provided in item 10 of the said will.
Third: It is further ordered that the administrators of the estate of Mrs. Bettie Fleming do turn over and deliver to
themselves as administrators of the estate of William J. Fleming with his will annexed, all of the monies, stocks, bonds, choses in action, and other property, including the tract of land of one hundred and six (106) acres standing in the name of Mrs. Bettie Fleming, all of which is hereby adjudged to be the property of William J. Fleming.
Fourth: It is further ordered that all of the stocks, bonds, choses in action, and other property of the estate of William J. Fleming, including the property standing in the name of Mrs. Bettie Fleming at the time of her death be sold and disposed of and converted into cash and the proceeds of sale thereof, together with all monies in the hands of the administrators, including that received from the estate of Mrs. Bettie Fleming, after the payment of the amounts above stated, be next applied to the payment of the legacy due Erskine College, the amount of which is hereby fixed at the sum of Twenty-five Thousand Dollars ($25,000.00) with interest thereon at seven per cent. (7%) from the date of the death of Mrs. Bettie Fleming. The stocks, bonds, choses in action, and other personal property hereby ordered sold shall be disposed of by the administrators of the estate of William J. Fleming and the proceeds of sale thereof applied as herein directed. The tract of land of one hundred and six (106) acres is hereby ordered to be sold by the Clerk of Court of Laurens County, at Laurens Court House, in said State, at public auction, according to the usual custom of sales, on salesday in October next, or some succeeding salesday, without the further order of the Court, for cash, the Clerk of Court to make title to the said property and the proceeds of sale thereof to be applied by him to the payment, first, of any balance due upon the legacy due to Erskine College provided in the 10th item of the will, and should any amount remain in his hands after the payment of the said legacy in full with interest, then it is
Ordered that he dispose of the same in accordance with the Tenth Item of the Will. Likewise, should the cash on
hand and the proceeds of sale of stocks, bonds, choses in action, and other property be more than sufficient to pay the legacy bequeathed to Erskine College, the over-plus will be disposed of by the administrators in accordance with the provisions of the Tenth Item of the said Will.
Fifth: In the argument of the case and in the exceptions it is sought to charge the administrators of the estate of William J. Fleming in their individual capacity with an amount alleged to be the difference between the market value of the real property already sold and the price at which the same was actually sold by them, for the reason, as it is alleged, that they entered into an agreement with one, Bryson, to purchase the same at their own sale, and actually became purchasers thereof at such sale along with the said Bryson. After considering the testimony in this matter the Court is of the opinion that the lands were sold for their full market value as found by the Referee, and it is so adjudged, and therefore the administrators are not chargeable with any sum on this account.
Sixth: At the hearing the plaintiff, John Fleming Blakely, requested that the executory devise provided in Item 7 of the will should be sold and disposed of. The Referee has directed that this interest in this tract of land, expectant upon the death of John Fleming Blakely, without heirs of his body, should be sold and the proceeds divided in equal moieties between the Blakely family and the Fleming family. The exception to this finding, made by the Trustees of Erskine College, is sustained and it is the opinion of the Court that the proceeds of sale of the executory devise should be applied to the payment in part, or as is necessary, to the legacy of twenty-five thousand dollars ($25,000.00) bequeathed to the trustees of Erskine college by the tenth item of the will. It is apparent, however, from the construction of the will that the beneficiaries in the executory devise are ascertained and certain and the proceeds of sale of said executory
devise should be applied to the payment of the said legacy in favor of the trustees of Erskine College, and after the payment of the same, the two families as provided in Item 10 of said will. By consent of all parties, and in order that the said John Fleming Blakely may have the opportunity to perfect his title to the said tract of land, it is
Ordered that the same be sold by the Clerk of Court on salesday in October, at Laurens Court House, in front of the Court House door, at public auction, according to the usual custom of sales, to the highest bidder, for cash, and the said Clerk of Court is hereby authorized to execute to the purchaser a warranty deed binding all parties to this action, for himself, herself, or itself, to warrant and defend each against himself, his heirs or successors and assigns, but not otherwise, the said title so conveyed in the executory devise, and it is further
Ordered that the proceeds of sale be applied as hereinabove directed. At such sale any party to the action may become the purchaser of said executory devise upon compliance with the terms of sale and the said sale shall be without prejudice to the title of John Fleming Blakely to his fee defeasible as created under the seventh item of the will, as it now exists.
Seventh: It is ordered that the Clerk of Court who is to make the sales of the real estate herein ordered, shall give due advertisement of the time, place, and terms of such sale, which sales are to be for cash in each instance, and upon compliance with the terms of sale the Clerk of Court will make title to the premises sold to each of the purchasers thereof; and should any purchaser at such sale fail to comply with the terms of sale as to either of the two said tracts of land within five days after such sale, the Clerk of Court will resell the same on some succeeding salesday, on the same terms and conditions and at the risk of the former purchaser and without the further order of the Court.
And it is further ordered that the purchaser, or purchasers at such sale be let into possession of the premises purchased by each upon production of the deed of the Clerk of Court thereto.
It is further ordered that any of the parties interested in this action may become purchasers at any of the sales herein directed. And in order that the rights of the defendant, the trustees of Erskine College may be more fully protected, it is further.
Ordered that before any of the stocks, bonds, or choses in action belonging to the estate of William J. Fleming as herein adjudged are sold by the administrators of his estate with his will annexed, such administrators shall advise the attorneys for the said defendant, the Trustees of Erskine College, of the price at which the same are about to be sold, and the said defendant, the Trustees of Erskine College, shall have the right, privilege, and option, within ten days after such notice, to purchase any or all of the said stocks, bonds, and choses in action at the best price offered therefor. All sales of stocks and bonds herein ordered to be made by such administrators shall be made by them at private sale after securing offers therefor through brokers or otherwise as they may be advised.
Eighth: It is further ordered that the case above stated be re-committed to O.L. Long, as Special Referee, for the purpose of passing on claims already filed or which may hereafter be filed against the estate of William J. Fleming and any claims which may be presented by L.P. Blakely, L.J. Blakely, and, or Wallace Byrd. The Special Referee is authorized to advertise for such claims for a period of not exceeding two weeks, and at the end of such time to take any testimony offered with reference to any of such claims, and upon the testimony so taken and any other evidence as to the validity of such claims which may be offered he will report to the Court which, if any, of such claims should be paid, with the amounts thereof. The Special Referee will also
report to the Court the amount of commissions due and payable to the administrators of the estate of William J. Fleming with his will annexed, and he may report to the Court upon any special matter.
Ninth: It is adjudged finally that the report of the Special Referee heretofore filed be, and the same hereby is, confirmed in all respects, except as the same is herein modified, and the recommendations thereof are hereby adopted by the Court and made the judgment thereof except as herein modified, All exceptions to the report except such as are sustained herein expressly or by implication are hereby overruled. Any of the parties hereto may apply at the foot of this decree, and as a part thereof, for such orders and decrees as may be necessary to carry this decree into full force and effect. Source: CourtListener
