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The opinion of the Court was delivered by
Mr. Justice Baker.
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We have carefully considered the record in this case, and are of the opinion that the decree appealed from correctly decides all issues. We, therefore, adopt the decree of Judge Greene. Let it be reported.
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Exceptions overruled, and judgment affirmed.
Mr. Chief Justice Stabler and Messrs. Justices Carter, Bonham and EishburnE concur.
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Case posture Posture Before GREENE, J., Richland, January, 1937. Affirmed.Suit by Elizabeth J. Allworden, as administratrix de bonis non, cum testamento annexo , of the estate of Charles
Logan, against C.S. Lemon and others. From an adverse decree, named defendant appeals.
The decree of Judge Greene is as follows:
This is a suit by the plaintiff, Elizabeth J. Allworden, as administratrix de bonis non, cum testamento annexo , of the estate of Charles Logan, deceased, for the specific performance of a contract of sale entered into by her with the defendant C.S. Lemon. The defendants John Logue and John Cassidy are made parties as representing the two classes of residuary legatees under the will of Charles Logan, deceased; John Logue being a son of James Logue, or Logan, a brother of testator, and one of the residuary legatees, and John Cassidy being a son of Mary Cassidy, or Cassido, a sister of testator who predeceased him and whose issue constitute the other class of residuary legatees.
The summons and complaint was duly served on the defendant C.S. Lemon on December 28, 1936, and said defendant has filed his verified answer in the case.
The summons and complaint was served on the defendants John Logue and John Cassidy on December 11, 1936, as appears from their acceptance of service attached to the complaint, and said parties have filed their verified answers herein, in which they ask the instruction of the Court as representing themselves and members of their class and join in the prayer of the complaint.
The case has been heard on an agreed statement of facts consented to by all of the attorneys of record for the several parties.
The sole question before the Court in this case is as to the legal right of the plaintiff as administratrix to make sale of the property on the north side of Blanding Street between Main and Sumter Streets covered by the contract of sale with the defendant C.S. Lemon.
The pertinent facts in connection with this matter are as follows: Charles Logan of the City of Columbia died November 29, 1903, leaving of force his will dated July 20,
1886, and codicils thereto dated July 26, 1893, June 16, 1899, and June 23, 1903. By this will and the codicils thereto testator named as executors his widow, Louisa D. Logan, and Edward Ehrlich, T.H. Meighan, and Jennie Logan. The will and codicils were admitted to probate in common form in the Probate Court for Richland County, and the executors named qualified as such. Thereafter Jennie Logan resigned as executrix, and her resignation was accepted by the Court, and all of the remaining executors have since died. Upon the death of Louisa D. Logan, the last surviving executor, in 1921, no one of the surviving residuary legatees was living in the State of South Carolina, and Elizabeth J. Allworden and Richard C. Keenan, residents of the City of Columbia, were appointed administrators de bonis non, cum testamento annexo , by the Probate Court for Richland County and qualified as such. That Richard C. Keenan thereafter died leaving Elizabeth J. Allworden the sole surviving administratrix.
The estate of Charles Logan has been fully administered except for the final distribution of the residuary estate, which consists of the lot in question in this proceeding and two bonds and mortgages.
The surviving residuary legatees listed in the agreed statement of fact consist of twenty-three representatives of Mary Cassidy, deceased, all residing in Northern Ireland, and eleven representatives of James Logue, deceased, six of whom reside in Northern Ireland, two in Far Rockaway, Long Island, and one each in East Syracuse, N.Y., White Plains, N.Y., and New York City.
Jennie Logan and Charles Logan, niece and nephew of testator and annuitants under the first item of the third codicil to his will, are both dead, Jennie Logan, the last surviving, having died in 1932.
The property here in question was held under the first item of the third codicil of said will by the executors, and afterwards by the administrators, for the purpose of paying
the annuities provided for Jennie Logan and Charles Logan during their lifetime.
Since the death of Jennie Logan in 1932, the administratrix has made efforts to sell this property for division amongst the residuary legatees but without success until the present time. The property was appraised by Walter T. Love Co., real estate agents of the City of Columbia, on August 4, 1933, at $15,000.00, and from the date of said appraisal the administratrix made efforts to sell said property, but not until the present time has she been able to realize the appraised price.
Under the contract of sale with C.S. Lemon he is to pay $15,700.00 cash, which will net the estate $15,182.50 after payment of commissions to the real estate agent who negotiated the sale.
This property has three residences on it which are rented and have been ever since the death of testator. On account of the change of neighborhood, the property is no longer desirable as residential property and has not yet become valuable as business property, and in the opinion of the Court the sale of the same at $15,700.00 is a proper sale at a fair price. In addition, the payment of cash will be of benefit to the residuary legatees as an immediate distribution can be made.
An analysis of the will and codicils of Charles Logan, deceased, in the consideration of the question before the Court shows the following:
By the first, second and third items of the will of July 29, 1886, testator devised to his wife a home for life, with the furniture therein, and directed his executors to pay her the interest on $25,000.00 of selected bonds to be held by the executors and paid to her during her lifetime, and provided that there should be no abatement of this legacy to his wife.
The fourth item of said will was as follows: Item Fourth: I direct my Executors as soon as in their judgment
advisable and practicable, to sell all the remainder of my real and personal estate, and collect and convert into cash all my other assets, and after payment of expenses of administration, of any debts I may owe, and expending under the direction of my wife fifteen hundred dollars, for an appropriate monument over my body, they shall distribute the net balance as follows, to wit: in payment of the following legacies.
By item 5 he devised to Charles and Jennie Logan $15,000.00 each; by item 6 to James Graham $15,000.00 and any indebtedness and $5,000.00 to Graham's sister, Sarah Gormley; by item 7 to James Logue, brother of testator, of Meencargagh near Castlederg, County Tyrone, Ireland, $5,000.00; and by Item 8 to Mary Cassidy, a sister of testator of the same place, $5,000.00; by Item 9 he directed that there should be no lapse of any of the legacies set forth in the preceding items and that in case of the death of any such parties the legacies should be divided amongst the remaining legatees.
By Item 10 he provided that upon the death of his wife his executors should sell the houses and lots and bonds and other personal property given her for life and divide the proceeds and any residue of his property not then disposed of as provided by Item 9.
Item 11 names the executors and Item 12 gives to Charles Graham $5.00.
By the first codicil of July 26, 1893, testator revoked Item 6 of the will in so far as it made a bequest to J.G. Graham and provided that, if Sarah Gormley should die without issue, the legacy given her should go to Charles and Jennie Logan but that, if Sarah Gormely left issue, such issue should represent her.
James G. Graham is further excluded from any interest or benefits under Items 9 and 10 of the will, and his appointment as executor is revoked.
By the second codicil of June 16, 1899, the life estate of his wife is increased from $25,000.00 to $50,000.00, the provisions for the wife are declared to be only during her widowhood and for her life, and there are certain changes made in the executors.
By the third codicil of June 3, 1903, testator, by the first item, provides as follows: 1. I revoke the Fifth Item of said Will, and instead thereof I direct my executors to pay to my nephew, Charles Logan, and to my niece, Jennie Logan, both of Chicago, the sum of five hundred dollars to each of them annually, for and during the term of his and her natural life, respectively. I direct that these two annuities be a charge upon the income to be derived from my three houses on the north side of Blanding Street between Main and Sumter Streets in the City of Columbia, S.C. and that no sale be made of these three houses until after the death of my said nephew and niece.
The only other items of this codicil which have any bearing on the controversy here are Item 7, which directs the executors to keep fully insured during the term of their trust the three houses on Blanding Street mentioned in Item 1 of this codicil, and to restore such as may be destroyed or injured, and Item 8, which is as follows: 8. Out of the residue and rest of my estate, I direct the following legacies to be paid: To Saint Peter's Roman Catholic Church of Columbia, S.C., to the Columbia Hospital of Columbia, S.C. to Dick Keenan of Columbia, S.C. and to Mary Breslin of New York, five thousand dollars, each; to the two daughters of said Mary Breslin, twenty-five hundred dollars, each; to George Keenan, Thomas Boyne, Mrs. E.H. Boyne, Mrs. Sarah Alexander and my nephew, Charley Graham, all of Columbia, S.C. one thousand dollars each. And all the residue of my estate, I give, devise and bequeath in two equal shares — one share to my brother, James Logan, or if he be dead to his issue living at the time of my death.
per stirpes, and one share to the issue of my sister, Mary Cassido, per stirpes, living at the time of my death.
It will thus be seen that by Item 4 of the will herein above set forth testator directed the sale of all of the remainder of his real and personal estate and the conversion into cash of all other assets as soon as practicable and from such fund the payment of the legacies set forth in Items 5, 6, 7, and 8. The fact that the legacy to James Graham was subsequently revoked by the first codicil and that the legacy to Charles and Jennie Logan in Item 5 was subsequently changed to an annuity by the third codicil did not revoke this general power and direction of sale as the legacies set forth in Item 6 to Sarah Gormley and Item 7 to James Logue and Item 8 to Mary Cassido remained effective. Further, in Item 8 of the third codicil testator directs the payment out of the residue and rest of my estate or legacies to sundry parties totaling $30,000.00.
Under Item 1 of the third codicil testator created an annuity for Charles Logan and Jennie Logan during their lives, and made it a charge on the income from the three houses on Blanding Street which are involved in this controversy, and directed and that no sale be made of these three houses until after the death of my said nephew and niece.
Viewing the provisions of the will in connection with the facts of this case, it appears that testator had made a number of pecuniary bequests, in no instance making outright devises of any of his lands except the home place at the corner of Senate and Assembly Streets, which he gave to his widow for life, and the Blanding Street property which he left in the hands of his executors, the income from which was charged with the payment of the annuities to Charles and Jennie Logan.
His brother, James Logue, and his deceased sister, Mary Cassidy, were both residents at Meencargagh near Castlederg of County Tyrone, Ireland, and testator evidently had in
mind that for the benefit of his residuary legatees it would be better to have the property, all of which was in the City of Columbia, sold by his executors who were familiar with the situation and with values and the proceeds distributed rather than to leave to such residuary legatees an undivided interest in real estate which it would be difficult for them to handle or realize upon. At the time of his third codicil his sister, Mary Cassidy, was dead, as the residuary bequest is to the issue of said sister living at the time of his death, so that he knew this particular interest would be divided amongst a number of persons.
The construction of this will was submitted to the Supreme Court of South Carolina in 1904, the title of the case being Logan et al., as Executors, v. Cassidy et al. , which is reported in 71 S.C. 175 , 50 S.E., 794 , 800 . While this proceeding did not directly include the question here under consideration, the Court in consideration of the question then before it seemed to recognize the correctness of the position taken by the administratrix in this proceeding. The Supreme Court adopted the decree of the Circuit Judge as the opinion of the Court. The Circuit Court, after consideration of the various questions, concludes as follows:
These inconsistencies of the last codicil with the tenth item of the will, together with the expressed disposition of item eight of the codicil of June 23, 1903, manifest an intention on the part of testator that the tenth item of the will should no longer be operative; that Charles Logan and Jennie Logan should receive the annuity of $500.00 each, and no more; that Sarah Gormley should receive only what is given her by Item 6 of the will; that James Logue and the issue of Mary Cassidy should receive the pecuniary legacies mentioned in Items 7 and 8 of the will, and also the residue of the estate under Item 8 of the latest codicil.
Therefore it follows that the estate not set apart for the widow for life, and not necessary to provide the annuities left after payment of debts and expenses, and the pecuniary
legacies named in the will, as amended by the codicils, is payable one equal share to James Logue, and one equal share to the children of Mary Cassidy; that the four acres of the race course tract, hereinabove defined, and $40,000.00 out of the proceeds of the $50,000.00 in bonds, held in trust for Mrs. Logan for life, and to be converted into money after her death, should be turned over to the city of Columbia after Mrs. Logan's death, to be held by said city under the provisions of the codicil of 1903; and that the remainder of said life estate, at its termination, converted into money, and the property retained by the executors to produce the annuities to Charles and Jennie Logan, should also be paid over at their respective deaths, one equal moiety to said James Logue, and equal moiety to the children of Mary Cassidy. These are rights which vested in James Logan and in the children of Mary Cassidy on the death of Charles Logan, the testator.
It will be particularly noted that with reference to the Blanding Street property the Court says: and the property retained by the executors to produce the annuities to Charles and Jennie Logan, should also be paid over at their respective deaths, one equal moiety to said James Logue, and an equal moiety to the children of Mary Cassidy. The use of the words paid over is very indicative.
So that, taking the provisions of Item 4 of the will which contains a general direction and power to the executors to sell all of the property and convert it into cash in connection with the first item of the third codicil creating the annuities for Charles and Jennie Logan from this Blanding Street property, which contains this statement, and that no sale be made of these three houses until after the death of my said nephew and niece, the conclusion is inescapable that testator intended that the general power and direction of sale in his will continue in the executors as to the Blanding Street property, but with the limitation that it should not be sold until the annuitants were dead.
It is not necessary that the power to sell should be expressly given in terms by the Will, but it may be implied when it is clear that the testator intended that his executor should have such power, or the directions of the Will are such that the power of sale is necessary in order that they may be properly carried out. 24 C.J., 156, § 637. See, also, 69 C. J., 825, § 1930.
When the testator uses such words as convey the idea that the whole estate, both real and personal, shall be comingled and distributed as personal property, and in such connection uses such words as `invest' and `pay over,' the will will be construed to authorize the executor to convert the realty into personalty, although no direct authority to sell and convey real estate is given. Clarke v. Clarke , 46 S.C. 230 , 24 S.E., 202 , 57 Am. St. Rep., 675. See, also, Farr v. Gilreath , 23 S.C. 502 .
I, therefore, find and conclude and it is so ordered, adjudged, and decreed: That Elizabeth J. Allworden, as administratrix de bonis non, cum testamento annexo , under the will of Charles Logan, deceased, vested under the statute with the same powers as the executors of said will possessed, is authorized to make sale of the Blanding Street property here in question; that the sale thereof for $15,700.00 is a fair sale and for the benefit of the residuary legatees; that upon the tender to him of a proper deed from the said administratrix the said C.S. Lemon is directed and ordered to comply with the terms of his contract of sale for said property by the payment of the purchase price therein agreed upon; and that if upon the tender of such deed the said C. S. Lemon refuses to comply, the property may thereafter be sold by the said administratrix at the risk of the said C.S. Lemon. Source: CourtListener
