Opinion
13977
January 15, 1935.
Before TOWNSEND, J., Richland, July, 1933. Affirmed.
Action by the South Carolina National Bank of Columbia, S.C. as executor of the estate of Edwin Trumble, deceased, against Joseph McC. Bates and another, individually and as representing the persons related to the deceased Edwin Trumble, in the fifth degree, Mary Alice Gibson and others. From an unsatisfactory decree, Mary Alice Gibson appeals.
The decree directed to be reported is as follows:
This matter came on to be heard before me at chambers on the 29th day of June on a complaint filed by the South Carolina National Bank as executor, praying for the construction of certain portions of the will of Edwin Trumble, deceased.
I will consider the various items in regard to which instructions are requested by the executor.
First. The testator devises, among other things, several tracts of land to the South Carolina National Bank in trust in perpetuity with rentals to be paid over to certain charitable beneficiaries. The prayer of the complaint, by Item 3, requests instructions as to whether or not the said trustee may sell any of the timber on said tracts. Inasmuch as it is apparent that the timber if allowed to grow beyond a certain stage will become less valuable and a large portion of same will finally be irreparably lost, I am of opinion that the trustee should be allowed to dispose of timber growing on said tract if and when a reasonable price can be obtained therefor, and the South Carolina National Bank as trustee is hereby authorized to dispose of such timber at a propitious time, and when and if a reasonable offer can be obtained therefor.
Second. The testator under the provisions of Item VIII of the will provides for the sale of certain tracts of real estate, the proceeds to be distributed as provided in said items: Among other provisions, said Item VIII contains the following:
"In addition, One hundred dollars ($100.00) in cash is to be promptly paid to the said Lavisa Young," and
"In addition, One hundred dollars ($100.00) in cash is to be promptly paid to the said Clarence M. Williams."
The executor requests instructions as to whether or not these cash payments shall be paid before the other legacies provided for in said item are distributed or whether these cash payments are to be made on a pro rata basis with the other legacies in case the property should not bring sufficient to pay all legacies contained in said item in toto. On account of the fact that these cash payments are provided for after the other legacies which, it is clear, are to be payable out of the proceeds of the real estate, I am of opinion that the intention of the testator was to have these two payments of $100.00 made ahead of the other legacies, and the executor is hereby ordered to pay said two items of $100.00 each to Lavisa Young and Clarence M. Williams before the other legacies are disbursed, and from the first funds becoming available from the sale of the real estate provided for in said Item VIII.
Third. The testator provides in Item IX of the will: "All of my life insurance policies and the proceeds thereof, I bequeath to Mary Alice Gibson of Bishopville, South Carolina, and in the event that she predeceases me, then to her heirs and distributes who would inherit from her, under the Statute of Distribution of South Carolina, in the event that she died intestate."
It appears from the proof produced at said hearing that Edwin Trumble was possessed of two life insurance policies, one in the sum of $2,000.00 and the other in the sum of $1,000.00, both of which were payable to his estate. It further appears that the said Edwin Trumble had borrowed upon the security of these two policies from the Equitable Life Assurance Society, which company had issued such policies, all except the sum of $702.70, and at the time of obtaining said funds from the said Equitable Life Assurance Society executed a certain assignment or special contract, wherein and whereby it is said further that the said society has made to the undersigned a cash advance upon the security of its policy upon the life of Edwin Trumble, and that the said Trumble thereby assigned said policy and the dividend additions thereto to the society as security for the repayment of said advance and the said Trumble agreed with the society, among other things: "Unless repaid to the Society prior to default in payment of any premium while said policy is in force all said advances and any interest thereon shall become due to the Society: * * * or upon maturity or termination of said policy. In that event the total of all advances and any interest thereon shall be deducted from any sum otherwise payable on said policy and the dividend additions thereto, if any."
Identical assignments were executed by the testator to cover the advances made on each of said policies.
Counsel for Miss Gibson calls attention to the fact that in letters from the society approving the advance, the term "loan" is used, apparently interchangeably with the word "advance." However, the instrument executed by the testator refers only to advance, and it is entirely apparent that the security held by the company was not similar to that of an ordinary collateral loan, as unless the advance was repaid that portion of the amount due on the policy was wiped out and there would have been no occasion for the Life Assurance Society to sue the executor for the recovery of the advance, and it follows the said society had no claim against the estate for same. In addition to this, there is stamped on the said assignment: "Absorbed in death claim."
The answer filed on behalf of Miss Gibson claims that this advance was a debt of the estate, and, inasmuch as the testator provided that "all of my just and legal debts and funeral expenses be paid out of my personal property," that it was incumbent upon the executor to pay said advances and to disburse to Miss Gibson the full face value of each policy without any deduction for the said advance.
It is further contended that by the language of Item X, wherein the testator devises "All of my life insurance policies (and the proceeds thereof"), this verbiage means that the testator intended all of his life insurance to be paid to Miss Gibson. This, however, in my opinion is not the proper construction, as the word "all" undoubtedly refers to the policies instead of to the insurance. Further, if the testator had intended to devise to Miss Gibson a specific amount, he could have done so and left the policies among the general assets of his estate. This he did not see fit to do. I therefore find, and so hold, that the testator in this case intended to leave to Miss Mary Alice Gibson the net proceeds of his life insurance policies rather than the face value of said policies and the executor is hereby directed to pay over to Miss Mary Alice Gibson such sum as it received in settlement of these policies, less such inheritance tax as is chargeable thereon.
Fourth. The testator under Item IX of his will devised as follows: "My other personal property, consisting of jewelry, household furniture, live stock and personality of every character, I bequeath and direct to be equally divided amongst all of my second cousins living at my death."
The complaint requests instructions as to what degree of relationship is necessary to constitute one a second cousin of testator. One of the defendants, Mr. Jeff B, Bates, testified that his great-grandfather was the grandfather of Edwin Trumble, the testator, and he therefore is related to the testator in the fifth degree. It was further testified that the testator had numerous relatives within this degree, but had no relatives within the sixth degree known to the witness who had resided all of his life in the same rural community with the testator. Technically speaking, a second cousin is one who is descended from a common great-grandfather and bears the relationship in the sixth degree, but in ordinary parlance, persons related in the fifth degree are commonly referred to as second cousins. This exact question was considered in the case of Slade v. Fooks, 9 Sim., 386, 16 Eng. Ch., 387, 59 Reprint 406.
I quote from note in 15 C.J., page 1186: "First Cousins Once Removed. A testator bequeathed property among `my second cousins.' The testator had no second cousins either at the date of his will, or at his death, or any born afterward. It was held that first cousins once removed were entitled. Chitty, J., said: `I do not understand that in that judgment, or in the judgment of the Court of Appeals, the case of Slade v. Fooks, 9 Sim., 386, 16 Eng. Ch., 387, 59 Reprint 406, decided by the Vice Chancellor of England, has been overruled. In that case the gift was to the second cousins, and the Vice Chancellor, in disposing of the case, said in words which are applicable to the present case, that the testator had only two generations of persons in her contemplation, namely, those whom she called her second cousins and the issue of such of them as were dead, and that it was very common for persons to call the children of their first cousins their second cousins. I agree with that latter observation. I think it is very common; and therefore in my judgment I have not to deal with a case in which the terms are strictly technical terms. I think the term "second cousins" may, on a fair consideration of this will, with reference to the facts as proved, be taken to denote cousins who are not exactly related according to the legal description in the degree of second cousins; and so I hold, and it follows from Slade v. Fooks, 9 Sim., 386, 16 Eng. Ch., 387, 59 Reprint 405, and rightly, that the persons who take under this will are the first cousins once removed.' In re Bonner, 19 Ch. D., 201, 205." See, also, Words Phrases, First Series.
The executor is therefore directed to distribute the personal property or the proceeds thereof among the relatives of the testator who were living at the death of said Edwin Trumble and related to him in the fifth degree.
Fifth. The executor requests that a reasonable fee be allowed to its attorneys for their services rendered in connection within the administration of this estate and for bringing the within action. It appears that Messrs. Herbert Dial, the attorneys for the executor, have been paid the sum of $300.00 on account of attorneys' fees. After considering the amount involved in this estate and after hearing what has been done by said attorneys, I am of opinion that a reasonable fee to be allowed to them is the sum of $1,250.00, from which the sum of $300.00 already paid is to be deducted, and the executor is ordered and directed to pay said fee to Messrs Herbert Dial, attorneys, out of the personal property or its proceeds. Inasmuch as there are several trusts involved in the will which relate to certain real property, and which have not been executed, leave is hereby granted to Messrs. Herbert Dial to apply in the future for such additional attorneys' fees as will be reasonable under the circumstances, and to be paid out of the real estate involved in said trusts.
The executor or trustees as the case may be is hereby directed to distribute the estate in compliance with the terms hereof.
It is further ordered that this action be held open for such further matters as may be involved in the future and for such further supplemental orders as may become necessary.
W.H. TOWNSEND, Judge Fifth Circuit.
Messrs. Hunt Clarkson and Grier, Park, McDonald Todd, for appellant, Mary Alice Gibson, cite: Legacy defined: 67 S.C. 168; 28 R.C.L., 295; 36 A.L.R., 761; 14 R.C.L., 1396; 19 R.C.L., 1293; 3 R.C.L. Supp., 394; 87 S.C. 401. As to debt due by intestate: 168 S.C. 277; 167 S.E., 465.
Messrs. Herbert Dial, for respondent, cite: Repayment of money advanced will not be forced from estate at death of insured: 130 N.E., 444; 197 N.Y.S., 560; 194 Mo., 214; 186 S.W. 1188; 78 Col., 516; 242 P., 982; 45 A.L. R., 718; 122 Va., 64; 95 S.E., 428.
January 15, 1935.
The opinion of the Court was delivered by
As a statement of this case, the Court adopts the agreed statement of counsel appearing in the transcript of record, to wit: "The South Carolina National Bank of Columbia, South Carolina, as Executor of the Estate of Edwin Trumble, deceased, commenced this action in the Court of Common Pleas for Richland County on or about the 18th day of February, 1933, against Jos. McC. Bates et al., who are legatees and devisees of the said Edwin Trumble, or otherwise interested in the estate. The Appellant, Mary Alice Gibson, is one of the legatees. The main purpose of the action by said Executor, the Respondent herein, is to secure a construction of the last will and testament of said Edwin Trumble. The Plaintiff also seeks the instructions of the Court as to the proper mode of distribution of the estate. Amongst other things, the Executor asks that the Court decide that the Appellant, Mary Alice Gibson, is entitled to receive, in the settlement of the estate, only the sum of $702.76, less inheritance taxes, said sum being the net amount payable by the Equitable Life Assurance Society under two policies on the life of Edwin Trumble, and in force and effect at the time of his death, the Executor claiming that said amount is the amount of the legacy given in Item 9 of the Will to the Appellant. The executor also seeks instruction in regard to other matters not material on this appeal. The Appellant in her Answer claims that the amount of her legacy is the face amount of the two insurance policies, to wit, the sum of $3,000.00, subject only to a deduction of inheritance taxes. The cause was heard before his Honor, W.H. Townsend, without a jury at Chambers on the pleadings and the record of the estate in the probate Court for Richland County. Certain oral testimony was also taken but relates to matters not relevant to the issues raised on this appeal. Judge Townsend filed a Decree on July 6, 1933, which, amongst other things, found that the Appellant was entitled to the net proceeds of the policies, to wit, $702.76, and not to the face amount of the said policies. In due time thereafter, Mary Alice Gibson gave the usual notice of intention to appeal."
After careful consideration of the case we are satisfied that his Honor, Judge Townsend, reached the proper conclusion in the case. The exceptions are therefore overruled, and it is the judgment of this Court that the decree issued by Judge Townsend in the cause and judgment thereon be affirmed.
MESSRS. JUSTICES STABLER and BONHAM and MR. ACTING ASSOCIATE JUSTICE G. DEWEY OXNER concur.