Opinion
15014
February 10, 1940.
Before RICE, J., July, 1936, and LIDE, J., August, 1938, Charleston. Affirmed.
Action by James W. Wilkinson, as qualified executor under the will of Carolina Huger Wilkinson, and in his own right, against Arthur M. Wilkinson and another for construction of will and to have plaintiff declared owner in fee simple of certain premises. From a decree confirming Master's report in favor of plaintiff, the named defendant appeals.
Order of Judge Lide follows:
Mrs. Carolina Huger Wilkinson, a resident of Charleston, died on or about April 30, 1929, leaving as her sole heirs at law her three sons, the plaintiff, James W. Wilkinson, and the defendants, Arthur M. Wilkinson and William W. Wilkinson. Mrs. Wilkinson left a last will and testament, the body of which is as follows: "I bequeath all my lands, tenements and hereditaments, and all my household furniture, ready money, security for money, money secured by life insurance, goods and chattels, and all other parts of my real and personal estate and effects whatsoever and wheresoever, unto my eldest son, James Withers Wilkinson, in order to enable him to carry out my wishes and intentions (the same being well known and understood by him), to the best of his judgment and ability, without any interference from anyone else. In the event of his dying before me, my second son, William Withers Wilkinson, will take his place under exactly the same circumstances as above described. Subject only to the payment of my just debts, funeral and testamentary expenses, and the charge of proving and registering this my will."
This will was duly admitted to probate in common form in the Probate Court for Charleston County on May 8, 1929.
This action was commenced on April 23, 1935, by the plaintiff, James W. Wilkinson, as qualified executor under the will of Mrs. Wilkinson and in his own right against his two brothers, Arthur M. Wilkinson and William W. Wilkinson, the purpose of the suit being to have the Court construe the will and render a declaratory judgment pursuant to the terms of Section 660, Code 1932.
The complaint alleges that upon assuming the burden of administering the estate as executor the plaintiff ascertained that the property of the estate consisted solely of an insignificant balance of interest due, amounting to $34.71, and the house and lot in Charleston known as 51 S. Battery; and I believe there is no controversy in reference to this allegation. The complaint further alleges that the plaintiff advanced his own money to pay debts of the estate amounting to between $1,300.00 and $1,400.00, and that he is desirous of selling the house and lot of which he took possession in his own right as devisee under the will, but that the defendant, Arthur M. Wilkinson claims to have a vested interest therein, and that he insists upon continuing to occupy rooms in said residence "which he was originally invited by plaintiff to occupy as his guest." The prayer of the complant is for a construction of the will and that the plaintiff be declared in his own right to be the owner in fee simple of the premises. The defendant, William W. Wilkinson, filed a formal answer admitting the allegations of the complaint and joining in the prayer thereof. The defendant, Arthur M. Wilkinson, however, filed an answer very vigorously contesting the cause and whenever the term "defendant" is hereinafter used without qualifying words it will be understood as referring to him.
The answer of the defendant, Arthur M. Wilkinson, alleges his ownership of an undivided one-third interest in the premises, denies the legal execution of the will, and alleges that if the same is valid the plaintiff did not take an absolute estate in fee simple thereunder, but that he took an estate in trust for the three heirs at law of Mrs. Wilkinson. It is also contended in the answer that the defendant would be entitled to a jury trial upon the issues raised by the pleadings.
The plaintiff first moved before Hon. William H. Grimball, Judge of the Ninth Circuit, for an order striking out of the answer those portions thereof which denied the legal execution and validity of the will, and that the same had been fraudulently concealed from the defendant. Judge Grimball granted the plaintiff's motion and struck these allegations out because it was admitted that the will was duly probated in common form and that more than four years had elapsed. Upon appeal to the Supreme Court the order of Judge Grimball was affirmed, and the validity of the will is no longer open to question. Wilkinson v. Wilkinson, 178 S.C. 194, 182 S.E., 640.
The counterclaim set up in the answer alleges in detail that under a proper construction of the will the plaintiff took an estate in trust for the benefit of the defendant to the extent of one-third interest, and further, that although this construction is the only possible one, the will is nevertheless void for uncertainty and that the result is intestacy, and of course in that case the defendant would be entitled to one-third interest in the premises. A demurrer was interposed to the counterclaim by the plaintiff, and in due course the same came on to be heard before Hon. H.F. Rice, presiding Judge, at the March, 1936, term of the Court of Common Pleas for Charleston County. The plaintiff had also given notice of a motion for an order of reference which was heard at the same time. The matter was argued before Judge Rice by counsel for the respective parties and his decision thereon was reserved. In due course, to wit, on July 10, 1936, Judge Rice filed his order, dated July 12, 1936, sustaining the demurrer, and referring the case to the Master.
For convenience the following excerpts from Judge Rice's order are inserted herein. He states the question to be decided by him and his answer thereto in the following language:
"The question to be decided therefore is:
"Do the words `in order to enable him to carry out my wishes and intentions (same being well known and understood by him), to the best of his judgment and ability without any interference from anyone else' impose a trust upon the devisee, or limit in any way the fee-simple estate devised?
"In the first place, the testatrix has expressed the plain intention to repose confidence in the devisee's handling of her `wishes and intentions,' and bestowed discretion upon him.
"In the second place, no trust has been set forth with such definiteness that a court of equity could enforce it.
"In the third place the words `without any interference from anyone else' refute absolutely any limitation on the free and uncontrollable dominion over the property."
Then after citing several authorities and quoting from them, he says: "Construed in the light of these authorities it is apparent, from an examination of the language relied upon by the defendant, Arthur M. Wilkinson, that neither was there an intention shown by the testatrix to cut down the fee-simple estate otherwise devised to the plaintiff in his own right, nor was trust for defendant's benefit set forth in and created by this language. On the contrary, it is plain that the testatrix devised her property to plaintiff, James W. Wilkinson, in fee simple, expressed her confidence in his handling of it as she desired, according to his judgment and ability, and provided that he should not be subject to interference from anyone."
He further holds that the contention that the will is void for uncertainty is without merit, and also that, as had already been held by Judge Grimball in his order on the motion to strike out, the case was one in which there was not presented any claim of title which required trial by jury, in any view of the case. Hence he ordered that the demurrer to the counterclaim be sustained, and that the cause be referred to Wm. McG. Morrison, Esq., Master, "to take the testimony herein and report to the Court on the issues of law and fact, with leave to report on any special matters."
Since Judge Rice's order definitely construes the will it is my view that it practically ended the case in favor of the plaintiff. The proposition is certainly not open to debate that one Circuit Judge may not reverse another and that the order of a Circuit Judge made in the due course of the case stands as the law thereof unless and until reversed by the Supreme Court. Warren, Wallace Co. v. Simon, 16 S.C. 362. And in this connection it should be stated that counsel for defendant duly reserved his right to have this order reviewed upon any appeal from final judgment in the cause. It is true, it was suggested that if the order of Judge Rice virtually ended the case there was no reason to refer it to the Master. There were, however, certain matters of detail requiring formal proof before the final decree could be formulated and rendered.
At the various references held by the Master a great mass of testimony was taken, amounting in all to 224 pages, and defendant's counsel proceeded on the theory that every position taken by him was open, with the single exception that the Supreme Court had decided that the execution of the will could not be questioned. And it should be stated that defendant's counsel has with zeal and ability forcefully urged at each step of the case every suggestion of law or of fact which would in anywise tend to support the claim of the defendant.
On motion made by counsel for the defendant, the Master permitted him to amend his answer so as to enable him to take the further position that the plaintiff was charged by his mother to distribute her estate among her three sons, pursuant to a secret trust dehors the will.
On March 30, 1938, the Master filed his report herein, in which he reviews the law and the facts with clarity and conciseness, and the conclusion he reaches is that the prayer of the complaint be granted and that the Court do adjudge and declare that the title of James W. Wilkinson, the plaintiff, to the property in question, and any other property of which the testatrix died seized and possessed, is an absolute title in fee simple unencumbered by any charge or trust. The Master was of the opinion that Judge Rice's decree was binding on him, but in view of the contention of defendant's counsel that it was not, he states that he has carefully considered the question of the construction of the will, and has reached the conclusion that Judge Rice's construction was correct, even if the question were considered an open one. He also found from the evidence that the plaintiff did not procure the devise to himself by promising his mother to give an interest in the premises to the defendant or anyone else, and that the testimony did not establish any secret trust.
The defendant duly filed exceptions to the Master's report and the same came on to be heard before me in open Court at the April term, 1938, of the Court of Common Pleas for Charleston County, the cause being argued on April 28, 1938. My decision was reserved thereon, and in the meantime very excellent briefs were furnished me by counsel for the respective parties, and the last of these briefs did not reach me until the end of May or early in June. I have given rather prolonged and intensive study to the voluminous record in the cause, and I find myself in agreement with the Master on all essential matters.
As I have already indicated, the order of Judge Rice is in my judgment binding upon both the Master and myself. Hence the law of this case (unless and until Judge Rice's order is reversed by the Supreme Court), is that in and by the will of the testatrix all of her property vested in the plaintiff, James W. Wilkinson, in fee simple, and that no trust or charge whatever is created by the will. In emphasizing the view that the order of Judge Rice is binding, I do not mean to say that if the question were an open one a different conclusion might be reached by me, but I do wish to make it clear that I am not attempting to review his order either directly or indirectly.
While the view of defendant's counsel is that the construction of the will is still open before me, it should be said in fairness to him that his special reliance at this stage of the case appears to be that there was a secret trust dehors the will, and that such trust is established by the evidence. But with great respect to his earnest argument, I think an analysis of the evidence will show that it does not tend even remotely to prove a trust. The apparent confusion perhaps arises in part from the circumstance that the will itself makes reference to the wishes and intentions of the testatrix, but her wishes and intentions as to the disposal of the property were precatory, and whatever they may have been, were not binding upon her son, James W. Wilkinson, the devisee. In other words, she created no trust but left it entirely to the discretion of the devisee as to whether or not her wishes and intentions should be carried out. In this connection, it should be stated in justice to the plaintiff that he testified as to what his mother's wishes were and that he did in fact carry them out. But in my opinion this testimony is irrelevant to any issue in the case. As was held in the New York case of Miller v. Hill, 203 N.Y., 646, 97 N.E., 1109, "if no trust was intended or accepted, the legatee takes an absolute title, and, whatever the moral obligation, no legal obligation rests on him." 69 C.J., 751. I do not mean to imply that the plaintiff had not performed his moral obligations, but merely to emphasize that this is an irrelevant inquiry.
I have been unable to conceive that a secret trust could be provable in the case at bar, for the reason that it would be in direct contradiction of the terms of the will. In other words, the will says in effect that the devisee takes the property without any legal obligation to carry out the wishes and intentions of the testatrix, whatever they were, while the alleged secret trust says that there was an obligation on his part to carry out such wishes and intentions and that this obligation was legal and binding. In other words, the will says one thing and the alleged secret trust another.
I am of course aware, and some of the cases so holding will hereinafter be discussed, that proof of a secret trust has been permitted in cases where the will was absolute in its terms, but in those cases there was no direct contradiction. The parol testimony, may have added to the will but did not vary it.
But if I am wrong as to this it is not very material because I am in accord with the master that it is clear from the testimony that no secret trust has been established, and this will become more apparent as we consider the law on this subject.
The general rule in this respect is well stated in 69 C.J., 750-751, as follows: "An exception to the rule that a trust cannot be established by evidence dehors the will is allowed and enforced in equity where the devisee or legatee has procured an absolute devise or bequest to himself by promising the testator, expressly or impliedly, that he would hold it for the benefit of another, and afterward refuses to perform his promise, but claims to hold the property in his own right and for his own benefit. In such a case equity will raise and enforce a constructive trust, unless the intention to create a trust is lacking."
This doctrine was recognized by the Supreme Court in the case of Stuckey v. Truett; 124 S.C. 122, 117 S.E., 192, 195, where Judge Cothran in his concurring opinion quotes the following with approval from 1 Tiffany, Real Estate, Section 94: "If one procures a devise by promising the testator to give the beneficial interests in the whole or a part of the property to a third person, he will be regarded as holding in trust for such person."
It will thus be seen that a secret trust is based principally upon a promise made by the devisee or legatee to the testator or testatrix, upon the faith of which an absolute devise or bequest was made. Let us therefore, consider the testimony in the light of this principle. Certainly there is no evidence whatever from which it could be assumed that any promise was given by the plaintiff to his mother as an inducement to the execution of the will. It is true there is testimony by the plaintiff and the defendant as to their understanding of their mother's wishes and intentions, but even if the testimony given by the defendant is construed most favorably to him, it does not begin to establish any agreement between his mother and the plaintiff even tending to create a secret trust.
Perhaps the evidence chiefly relied on by the defendant is Exhibit "P," consisting of two sheets of yellow legal cap paper containing a pencil draft of a letter which apparently the plaintiff intended to write to his brother, William W. Wilkinson. The date of the draft was February 8, 1930, and it is admittedly in the handwriting of the plaintiff, except that he testified that some verbal changes made therein in ink were not made by him; but this is unimportant. The paper is not signed and was never delivered, but it was discovered by the defendant, Arthur M. Wilkinson, among the plaintiff's papers and was produced at the hearing before the master. This exhibit was very frequently referred to in the argument by counsel before me, and the most pertinent portion thereof seems to be the following: "In my (tin box), you will find Mama's engagement ring, she wants you to have same. After you, she wants Arco to have same. As you and Arco, both know, if house is not sold and settled up (after B's death), everything is to be divided equally among us three." ("Arco" refers to the defendant Arthur M. Wilkinson).
The theory of the defendant was that this was an admission in writing made by the plaintiff showing that his mother intended that the plaintiff should take the house in trust for the benefit of himself and his two brothers, after the death of Miss Belle Huger, invalid sister of the testatrix. Although unsigned and undelivered I think the memorandum would be competent evidence if it shows any admission against interest on the part of the plaintiff. In view of the fact that reference is made to the wishes of Mrs. Wilkinson in regard to her engagement ring, and immediately thereafter is a statement about the house, it might perhaps be inferred that the statement in regard to the house also represents the wishes of Mrs. Wilkinson. But this inference is by no means a necessary one. There is absolutely no statement made that Mrs. Wilkinson desired the house to be equally divided among her three sons. The plaintiff himself testified that when he wrote this statement he had no reference whatever to his mother's wishes or intentions in regard to the house, but to his own; that his mother wished him to provide a home for her sister, Miss Belle Huger, during her lifetime (which was done), and that then it was her wish that the plaintiff should have the property solely in his own right, and that the statement in question represented his own wishes or intentions, it being his intention at that time to arrange for the property to be divided equally among the three brothers, although he was under no legal or moral obligation to do so since it belonged to him in fee simple. Clearly the plaintiff's testimony is consistent with the language used in Exhibit "P." In other words, the language used might indicate that it was his mother's intentions he was speaking of or his own. Hence it manifestly follows that Exhibit "P" is not sufficient to establish a secret trust.
Besides, even if it be concluded from the language contained in Exhibit "P" that the plaintiff admitted that it was his mother's wishes that the property should be equally divided, this would be no evidence of a secret trust, because Mrs. Wilkinson refers in her will to her wishes, but under the terms of the will the execution of her wishes and intentions rests solely in the discretion of the plaintiff, the title conferred upon him being an absolute estate in fee simple.
The few cases in this State which have sustained secret trusts are cited in the master's report, and on account of the importance of the matter involved two of these cases will be considered by me in detail, even at the expense of unduly lengthening this decree.
The oldest one of these cases is that of Towels v. Burton, Rich. Eq. Cas., 146, 24 Am. Dec., 409. The facts of this case are very well stated in the syllabus as follows: "Testator, having several children, bequeathed to a married daughter a very inconsiderable legacy, and to a son a double portion, taking from the son a bond, conditioned to hold one-half of the personal property, which he was to receive of his father's estate, for the benefit of the married daughter and her children. Eleven years after, the testator executed a second will, with similar provisions. Parol evidence was held admissible to show, that when the second will was executed, and afterwards, the son acknowledged the trust; and, he being dead, his representatives were ordered to account to the cestui que trusts."
The Court finds in this case that the transaction, "as explained by the most unequivocal proof" shows that the testator bequeathed to his son the portion he desired his married daughter to receive, so as to prevent her husband from wasting it, and that his son consented to accept the legacy in trust and promised on his part to fulfill his father's wishes. The Court further says that not only is there a clear and explicit promise, founded on full consideration, as shown by the evidence, but that this evidence was superseded by the higher evidence of a bond in writing to that effect given by the son, and that while this bond was given with reference to a former will it related equally to the matter in hand. Obviously this case can lend no aid or comfort to the defendant, for the agreement there between the father and the son is not only definite and explicit by parol testimony but was actually evidenced by a bond in writing.
A more recent case is that of Gore v. Clarke, 37 S.C. 537, 16 S.E., 614, 20 L.R.A., 465, and in this case the testator left a will in which he provided that the residue of his estate, after certain specific bequests and devises, should vest absolutely in his friend James L. Clarke. It was established by the testimony that the intention of the testator was this portion of his property should go to his illegitimate children and their mother, and that the will was so made to defeat the statutory law of this State relating to gifts to a mistress and illegitimate children. While as stated, there seems to have been no question about the intent and purpose of the will the Circuit Judge said that it had not been proved to his satisfaction that Clarke, the donee, had any notice of this purpose during the lifetime of the testator, or made any promise to carry out such a trust, and he therefore held that there was no trust, although he expressed regret at having to reach such a conclusion. Upon appeal to the Supreme Court the judgment of the Circuit Court was reversed. The opinion was delivered by Mr. Justice Pope, and concurred in by Mr. Justice McGowan. Chief Justice McIver dissented, for the reasons stated by the Circuit Judge. This case was reported in 20 L.R.A., 465, and the actual decision of the Court is well expressed in the headnote prepared by the editors of L.R.A. as follows: "A devise intended to evade the provisions of a statute limiting the amount of property that can be given to a woman with whom testator had lived in adultery, or to his illegitimate children, although it is on the face of the will an absolute gift to a stranger, will not be upheld merely because the devisee had no notice during the testator's lifetime of the secret trust intended."
It is no doubt true that the case of Gore v. Clark, supra, is out of line with the authorities generally on the subject of establishing a secret trust, because the trust was there declared regardless of whether or not the donee had any actual notice during the testator's lifetime of the secret trust intended. And this is why the great Chief Justice agreed with the Circuit Judge in holding that there was no valid trust. But the majority opinion of the Court is based on the proposition that the will plainly sought to evade the salutary provisions of the law, and for that reason the donee could not claim any beneficial interest in the property, a situation which bears not the slightest analogy to the questions involved in the case at bar.
I have examined every case cited by counsel and such other authorities as I have been able to find, and my conclusion is that none of them tends to support a secret trust under circumstances bearing any similarity to the case at bar. And I am very definitely of opinion that the defendant has failed to establish such a secret trust.
I believe the foregoing sufficiently states my views as to all points raised by the exceptions, other than Exception I, which alleges that the master erred in holding that it was not necessary to make any recommendations as to rulings on the testimony taken subject to objection. A great deal of the testimony taken on both sides was certainly irrelevant, that is to say, much of it, while not violating any procedural rules of evidence, was irrelevant under the substantive law of the case. But the conclusions of the master and of this Court on the substantive law of the case, it seems to me, sufficiently indicate what testimony was deemed irrelevant, without going into further detail.
Upon a very thorough consideration of the master's report, in the light of the exceptions, his findings on all essential matters meet with my approval, as I have hereinbefore indicated; and hence the exceptions are overruled and the master's report confirmed. It is, therefore,
Ordered, adjudged, decreed and declared. That the title of James W. Wilkinson, the plaintiff herein, to the property referred to in the complaint, known as 51 South Battery, Charleston, S.C. and any other property of which the testatrix died seized and possessed, is a title in fee simple absolute, unencumbered by any charge or trust; and hence that neither of the defendants has any right, title or interest therein.
Mr. John P. Grace, for appellant, cites: Construction of will: 37 S.C. 537; 16 S.E., 614; 3 Rich. Eq., 305; 46 S.C. 169; 24 S.E., 64; 5 S.C. 450; 29 S.C. 54; 6 S.E., 902; 29 S.C. 466; 7 S.E., 817; 41 S.C. 291; 19 S.E., 670; 48 S.C. 408; 26 S.E., 722; 127 U.S. 300; 32 L.Ed., 138; 172 U.S. 392; 43 L.Ed., 489; 177 U.S. 477; 44 L.Ed., 852; 186 U.S. 212; 46 L.Ed., 1083; 90 S.C. 23; 72 S.E., 546; 12 A.L.R., 26; 25 S.C. 72.
Messrs. Nath. B. Barnwell and Robert McC. Figg, Jr., for respondent, cite: Creation of trust: 5 S.C. 450; 29 S.C. 54; 29 S.C. 466; 41 S.C. 291; 48 S.C. 408; 46 S.C. 169; 178 S.C. 230; 182 S.E., 432. Construction of will: 28 R.C.L., 229. As to confirmation of Master's report: 131 S.C. 101; 126 S.E., 438; 183 S.C. 75; 199 S.E., 104.
February 10, 1940. The opinion of the Court was delivered by
Mrs. Carolina Huger Wilkinson, late of the City of Charleston, S.C. departed this life on or about the 30th day of April, 1929, leaving of full force and effect her last will and testament, of which her son, James W. Wilkinson, was made executor. She left her surviving, as her sole heirs-at-law and distributees, her sons, James W., William W. and Arthur M. Wilkinson. The will was dated the 2nd day of February, 1920, and was admitted to probate the 8th day of May, 1929, in the Probate Court for Charleston County, and on that day, James W. Wilkinson qualified as executor.
Some question having arisen between the executor and Arthur M. Wilkinson touching the validity of the will and its proper construction, James W. Wilkinson, as executor and in his own right, brought this action to have the Court construe the will and declare the plaintiff to be the owner in fee simple of the premises described therein. William W. Wilkinson and Arthur M. Wilkinson were made defendants. William W. Wilkinson answered, admitting the truth of plaintiff's contention and joining in the prayer of the complaint.
Arthur M. Wilkinson also answered, setting up (1) a general denial; (2) the invalidity of the will; (3) that the existence of the will had been concealed from him until after the will had been probated for more than four years; (4) that a proper construction of the will would be to hold that it created a trust in favor of Arthur; (5) that it was void for uncertainty; (6) that the suit is one to try title and cannot be brought under Section 660 of the Code; (7) as that would destroy this defendant's right to try the issue of title by jury.
Plaintiff moved to strike from the answer those parts which challenge the validity of the will as a testamentary instrument; the constitutionality of Section 660, and the allegation of defendant's right of trial by jury, and the defenses numbered 2, 3, 6, and 7. The motion to strike was heard and granted by Judge Grimball.
An appeal was taken from so much of this order as held that the will could not be contested as a testamentary instrument, for that more than four years had passed since it was probated. The order of Judge Grimball was affirmed by the Supreme Court. See 178 S.C. 194, 182 S.E., 640.
No appeal was taken from that part of the order which upheld the constitutionality of Section 660 of the Code, nor from that part which declared that the action was not one triable by jury.
At the time of making the motion to strike, the plaintiff demurred to the defendant's counterclaim, which demurrer was sustained by Judge Rice, who ordered a reference on the whole case, to take the evidence and to hear and determine the issues of law and fact. It was in the argument on the demurrer that counsel for the defendant advanced the proposition of the existence of a secret trust dehors the will. In due time the Master filed his report, in which he recommended that the prayer of the complaint be granted, and that plaintiff be decreed to be the owner in fee simple of the real estate in dispute.
In due time the defendant filed exceptions to this report, which were heard by Judge Lide.
We have been thus prolix in setting forth the cardinal facts of the case in order that they may be before us succinctly when we come to study the decree of Judge Lide, which decides the exceptions.
We have given it careful consideration, and after prolonged deliberation have reached the deliberate conclusion that it must be affirmed.
Appellant's counsel has interjected the question of a secret trust dehors the will. Frankly, we do not think that that issue was properly before the Court, but it was considered and decided. The presentation of the "Exhibit P" was ably and forcibly argued by defendant's counsel, but we are satisfied that if it be given consideration, it is far from presenting facts sufficient to prove a secret trust.
The decree of Judge Lide shows thorough and conscientious consideration, and sound decision of all the issues involved in the appeal. It is unnecessary to add anything to it, and it is satisfactory to the Court.
The exceptions are overruled, and the decree is affirmed.
Let it be reported.
MESSRS. JUSTICES CARTER, BAKER and FISHBURNE concur.