
    Caroline T. Hodges and others vs. Reuben S. Chick.
    
      Wills and Testaments — Trusts and Trustees.
    
    The testator directed certain property to be sold, and the surplus of the proceeds to be “equally divided in six parts, for the benefit of my six children, or the heirs of their bodiesheld, upon the construction of the whole will, that the shares of two married daughters, were intended to be settled upon the same trusts, that property specifically devised and bequeathed to a trustee for their/ benefit, was, in terms, settled. ;
    BEFORE JOI-INSTON, OH., AT CHAMBERS,
    DECEMBER, 1856.
    Johnston, Ch. This case is heard at Chambers by consent of parties.
    It arises under the will of the late Dr. Burwiil Chick, of Greenville.
    The testator died the of 1847, leaving six children, and his will, dated the 9th of February, 1846, of which he appointed his two sons, Pettus W. Chick and Reuben S. Chick, executors.
    The material clauses of his will are:
    2. The second clause, by which he gives to his son, Pettus, nine slaves, by name.
    3. The third, in which he gives his son Reuben, twelve slaves, by name.
    4. The fourth clause, in which he bequeaths to his son Reuben, “ in trust for my daughter, Maria H. Thompson, the following property,” (naming eight slaves;) “ also, the two lots that I live on in the town of Greenville; also, the tract of land I bought of L. Goodlett, lying on Richland Creek.”
    5. The fifth clause, in which he gives to his son,Pettus, “in trust for my daughter, Louisa V. Farr, and her children, the following property, to wit: (naming eight slaves); also, the tract of land I bought of Sitton, containing 280 acres, lying on Saluda river, with my mills on it, lying in Pickens District; also, one other tract, bought of Wm. Hunt, lying on the Green-ville side of said river, supposed to contain 125 acres.”
    Then comes the sixth clause in the following words: “ I give to my son, Reuben S. Chick, in trust for my daughter, Caroline T. Hodges, the following property, to wit: Bill, Lig-gon, Daniel, Ritter, Emery and Butler, her children, negro slaves; also, one lot in the town of Greenville, where my blacksmith shop stands on.”
    7th. By the seventh clause, the testator gives his son, Pettus, “ in trust for my daughter, Wilhelmina Chaplin, the following property, to wit:” (naming the ten slaves.)
    The 8th, 9th, 10th, 11th, 12th and 13th clauses are in the terms following:
    8th. “ Upon estimating (what I have) heretofore given my children, and what I have herein specially named for the benefit of each child, as well as I can judge the value of each, will be as follows: -
    “Pettus W. Chick’s portion is $10,810.
    Reuben S. Chick’s portion is 10,400.
    Maria H. Thompson’s portion is 10,800.
    Louisa V. Farr’s portion is 10,350.
    Caroline T. Hodges’ portion is 9,400.
    Wilhelmina Chaplin’s portion is 9,750.”
    9th. “ It is my desire that my executors, hereafter named, as soon as convenient after my decease, do divide my tract of land, lying in Newberry and Union Districts, into three or four tracts, as in their judgments may be best, and sell the same on a credit of one, two and three years, bearing interest from day of sale. Also, my Sulphur Spring and Fleming tract, with all the furniture, household and kitchen furniture, be sold in the same way; also, my crop, my shares in the rolling mill; also, my furniture, at every place that I own, and all my stock at my place, and all and every thing that I possess, sold in like manner, not otherwise mentioned or given away.”
    
      10th. “It is my wish that each of my children, or their trustees for them, should receive, out of the proceeds of the sale of this property, a sufficient sum to equalize them with my son, Pettus W. Chick’s portion, that being the largest amount, and the surplus I wish equally divided in six parts, for the benefit of my six children, or the heirs of their bodies.”
    11. “It is my wish that the trustees of each of my daughters shall vest all funds coming in their hands, from the provisions of the eighth article of this my will, in land, where they may think best for my daughters, or their children.”
    12. “ If my daughter, Maria H. Thompson, should die, leaving no child, it is my wish that her trustee should sell the property in his hands, and divide the proceeds of the same equally between my surviving children, or the heirs of their bodies. But in case she should have a child or children, and they live to come of age, then the property belongs to the child or children, at the death of their mother.”
    13. “At the death of my daughter, Caroline T. Hodges, provided she leaves no child or children, or they all die before they come of age, it is my wish that her trustee should sell the property in his hands, and divide the proceeds of the same equally between my surviving children, or the heirs of their bodies. But, provided she has a child or children, and they or either of them come of age, it is their property at her death.”
    14th and 15th. The fourteenth and fifteenth clauses contain provisions nearly identical with the above, limiting over the shares of testator’s daughters, Wilhelmina and Louisa, in the hands of their respective trustees, 
    
    
      It appears that the sale directed in the 9th clause, has been made by the executors, and Reuben S. Chick, the trustee of Mrs. Hodges, received not only the $1410, necessary to equalize her “'portion” with that of her brother Pettus, but her share also of the “overplus” and has purchased real estate in Newberry, which he holds, as her trustee.
    One of the questions in the case is, whether this “overplus” is a trust fund, and, of course, whether the real estate purchased by the trustee, so far as the “overplus’’ entered into it, is properly trust property.
    The will is certainly unskilfully drawn; but drawing the best construction I can from its language, I am of opinion that the “overplus” constituted an absolute legacy, unfettered by any trust or conditions.
    
      My construction is, that the testator, in the first place intended to give an equitable or trust property to Mrs. Hodges, in the property set forth in the sixth clause, vesting the title of it in her'brother Reuben. The value of this he defines in the eighth clause; and in the ninth and tenth clauses, he requires that it be augmented to $10,810, out of the proceeds of sales which he directs; and, finally, after this process is observed as to all his children, he disposes of the surplus of those sales, not by creating a trust or adding to the trust he had already created, but by a simple requisition that it be divided, a sixth to each child, “for the benefit of his six children, or the heirs of their bodies ;” that is to say, one-sixth to be paid to each child, or in case of the death of any of them, their shares to be paid to their children or issue.
    It has been objected that the direction contained in the eleventh clause was sufficient to constitute this surplus a trust fund, and to authorize the trustee to invest it as well as the sum coming to his cestuique trust, for the purpose of produc- ■ ing equality. But I take a different view. A distinction is created and carefully kept in the tenth clause, between the sum given for equality, and the “overplus.” The former is to be paid to the trustee, by express direction. The latter, if intended as part of^he trust fund, would naturally have received a similar direction, instead of which, and without any allusion to a trust, it is given directly to the legatee.
    It is not at all an improbable thing that the testator intended to give a trust estate of a certain value, and to bestow any thing beyond that absolutely.
    Another question in the case is, whether the sum given inequality is part of the trust property, or to be considered an absolute gift. This question I have already incidentally considered and decided. The indications of intention are, in my opinion, fully clear that it was to constitute part of the trust estate.
    A question remaining to be decided is, whether the real estate (the lot) included in the sixth clause, is impressed with a trust character.
    
      If we confine ourselves to that clause, or to those in which provision is made, in the first instance, for the daughters of the testator, there is nothing sufficient to raise a trust out of his language.
    All the property, both real and personal, is given to the sons as trustees of the daughters; no terms are used to describe the trust intended, or to regulate or define the duties of the trustee. It is a mere gift to him for the use of another. The property really belongs to the beneficiary, unless we find something else in the will. The statute of uses would give the land to Mrs. Hodges. But we are to read the sixth clause in connection with the thirteenth, where the property is limited over at the death of Mrs. Hodges, that is, the duty is imposed on the trustee to sell it at that time, and dispose of its proceeds according to the contingencies described. As I construe that part of the will, such child or children as Mrs. Hodges may leave at her death, will, at her death, acquire a vested interest in the proceeds of the trust property, to be enjoyed at their majority. If she leaves no child, the proceeds are to be delivered to her brothers and sisters then living, and if any of them be dead, leaving issue, that issue is to take the share which such deceased would have taken, if still living.
    It is not necessary to decide here what distribution must take place in case Mrs. Hodges shall leave a child or children, who shall not live to attain majority.
    The Commissioner has made a report that it will be to the advantage of the parties interested that sale be made of the lot in Greenville, included in the sixth clause, and also of the real estate purchased in Newberry by the trustee, Reuben S. Chick, as trust property. It appears that they are unproductive and dilapidated.
    It is ordered that the Commissioner, after duly advertising the sales hereby directed, for at least twenty-one days, do sell the lot in Greenville, at Greenville Court House, and the New-berry lands, at Newberry Court House, on the first convenient sale day, each at public auction, and each on a credit of one, two and three years, with interest from the day of sale; requiring so much cash from the purchaser as will pay the costs of this suit, and take the bonds of the purchasers, with at least two good sureties, and a mortgage on the premises, to secure the balance of the purchase money. The distribution of the proceeds to await further orders, to be applied for in term time.
    It is referred to the Commissioner to enquire, and report at the next term, how much of the “overplus,” and how much' of the sum allowed for “equalization” were employed in the purchase of the Newberry lands, and what proportion of the sales herein directed, should go to the trust estate, and what to Mrs. Hodges absolutely. He will also report airy special matter. .
    One reason for requiring the proceeds of the sale of the Newberry land to await further order, arises from the fact, that the bill is filed against Reuben S. Chick alone.
    The other children of the testator may have interest, and cannot be concluded without being brought before the Court.
    It is ordered that the plaintiffs have leave to amend their bill, and make the parties defendants.
    The defendant appealed from so much of the decree of Chancellor Johnston as relates to the construction of that portion of the will as directs that the proceeds of the sales of the testator’s lands, &c., be paid over to the complainants, and moved this Court to reverse the same, on the ground:
    That his Honor erred in adjudging that a portion of the estate, which the complainant, Caroline, took under her father’s will, vested in her absolutely, and was not held in trust for her during life; and will insist, that according to the true construction of the whole will taken together, the whole estate to which she is entitled should be held in trust by the defendant, for her during life, and at her death in default of issue, to the other legatees under the said will.
    And notice was also given that a similar motion would be made to reverse so much of Chancellor Dargan’s decree at June Term, 1857, under the amended bill, as applies the same construction in behalf of Mrs. Maria Thompson.
    
      Fair, for appellants.
    
      Townes fy Campbell, contra.
    
      
      
        ) A copy of the will is as follows:
      I, Burwell Cluck, planter, of the town of Greenville, South Carolina, being feeble in body, but of sound and disposing of memory, do make this, my last will and testament, hereby revoking ail wills made by me heretofore.
      First. It is my wish that after my decease, my body shall be decently interred, and my funeral expenses, and all other just debts, be paid.
      Second. I give to my son, Pettus W. Chick, the following negroes, (to wit: Tom, Hardy, Green, old Siller, Patt, Eliza, Jim, Thurston, and Tinsley.
      
        Third. T give to my son, Reuben S. Chick, the following negroes, (to wit:) Isaac, Caroline, Peter, big Tom, Bid, Randal, Calep, Canada, Lucinda, Reuben? Jim, and Louisa and her children.
      Fourth. I give unto my son, Reuben S. Chick, in trust for my daughter, Mariah H. Thompson, the following property, (to wit:) Harry, Lewis, John, Judy and her children, Martha and Willis, Tilda and her child Sofa, negro slaves. Also, the lots that I live on, in the totvn of Greenville; also, the tract of land I bought of B. Goodlett, laying on Richland Creek.
      Fifth. I give to my son, Pettus W. Chick, in trust for my daughter, Louisa V. Farr, and her children, the following property, (to wit:) Lively, Clemmon, Fort, Mima, and Ann, Nora, Polina and Charles, whom is in the place of Hunber, negro .slaves; also, the tract of land I bought of Sitten, containing two hundred and i eighty acres, lying on Saliida river, with my mills on it, lying in Pickens district 5 also, one other tract, bought of William Hunt, lying on the Greenville side of said river, supposed to contain one hundred and twenty-five acres.
      Sixth. I give to my son, Reuben S. Chick, in trust for my daughter Caroline T. Hodges, the following property, (to wit:) Bill, Liggans, Baniei, Ritter, Emery and Butler, her children, negro slaves; also, one lot in the town of Greenville, where my blacksmith shop stands on.
      Seventh. I give to my son, Pettus W. Chick, in trust for my daughter, Wilhelmina Chaplin, the following property, (to wit:) Joe, Amsted, Charity, Harriett, Milley, Bill, Fanny, William, Tyler, Pettus and Eda.
      Eighth. Upon estimating, heretofore, given my children, and what I have herein specially named for the benefit of each child, as well as I can judge, the value of each will be as follows, to wit:
      Pettus W. Chick’s portion is ten thousand eight hundred and ten dollars. Reuben S. Chick’s, ten thousand four hundred dollars. Mariah H. Thompson’s, ten thousand eight hundred dollars. Louisa V. Farr’s portion, ten thousand three hundred and fifty dollars. Caroline T. Hodges’ portion, nine thousand four hundred dollars. Wilhelmina Chaplin’s portion is nine thousand seven hundred and fifty dollars.
      Ninth. It is my desire that my executors have, after named, as soon as convenient, after my decease, do divide my tract of land, lying in Newberry and Union districts, into three or four tracts, as in their judgments may be best, and sell the same on a credit of one, two and three years, bearing interest from date of sale; also, my Sulphur Springs and Fleming tract, with all the furniture, household and kitchen furniture, be sold in the same way ; also, my crop, my shares in the Rolling Mill; also, all my furniture, at every place that I own, and all my stock at every place, and all and every thing that I possess, s'old in like manner, not otherwise mentioned or given away.
      Tenth. It is my wish that each of my children, or their trustees for them, should receive, out of the proceds of the sale of this property, a sufficient sum to equalize them with my sou Pettus W. Chick’s portion, that being the largest amount, and the-surplus I wish equally divided in six parts, for the benefit of my six children, or the heirs of their bodies.
      Eleventh. It is my wish that the trustees of each of my daughters shall vest all funds coming into their hands from the provisions of the eighth article of this» my will, in lands where they may think best, for my daughters, or their children.
      Twelfth. If my daughter, Mariah H. Thompson, should die, leaving no child, it is my wish that her trustee should sell the property in his hands, and divide the proceeds of the same equally between my surviving children, or the heirs of their bodies. But, in case she should have a child, or children, and they live to come of age, then the property belongs to the child, or children, at the death of their mother.
      Thirteenth. At the death of my daughter, Caroline T. Hodges, provided she leaves no child, or children, and they all die before they are of age, it is my wish that her trustee should sell the property in his hands, and divide the proceeds of the same equally between my surviving children, or the heirs of their bodies. But, provided she has a child, or children, and they, or either of them, comes of age, it is their property at her .death.
      Fourteenth. If my daughter, Wilhelmina Chaplin, should die, leaving no child, or children, to arrive of age, it’s my wish that her trustee should sell the property in his hands, and divide the proceeds of the same equally between my surviving children, or the heirs of their bodies; but, should her child, or children, live to come of age, the property i£ theirs at the death of their mother.
      Fifteenth. My will and desire is, that if my daughter, Louisa V. Farr, should die, leaving no child, or ehildrbn, to arrive of age, it’s my wish that her trustee should sell the property in his hands, and divide the proceeds of the same equally between my surviving children, or the heirs of their bodies ; but, should her child, or children, live to come of age, the property is theirs at their mother’s death. '
      Sixteenth. My wish and desire is, that should my daughter, Louisa V. Farr, wish to move from where she now lives, and her trustee thinks it advisable, he is at liberty to sell the real estate that I have put in his trust for her, provided he will lay out the proceeds in lands for her and her children, under the restriction as the land is under at this time.
      Seventeenth. As George is afflicted, my wish is that he should choose which of my children he would rather serve, and whichever he chooses will take him at valuation, by two disinterested men, which will be deducted from their part of the amount coming to-them from my estate.
      Eighteenth. It is my wish that the contracts, whether verbal or written, entered into between myself and sundry persons, who have built houses on the Sulphur Springs plantation, should be strictly observed. There is a written contract between myself and Mr. William Turpin, and a verbal agreement between myself and the following persons, to wit: Pettus W. Chick, Thomas Henderson, Josiah Kilgore, Philip C. Lester and Dr. Thomas Austin. My wish is that they may occupy their houses built there, free of rent, and having the use of wood and water as long as they please to do so, upon the express condition that none of them are to open boardinghouses; if they do, they forfeit their claims to the house.
      Nineteenth. It is my request and desire that my heirs may settle any matter of . difficulty that may arise in relation to this my last will and testament, by selecting three disinterested persons, whose decision shall be final; and if any one or more :of my heirs shall commence a law suit in the matter, the shares of such shall be forfeited, and revert to my other children, or their issue.
      Twentieth. I hereby constitute and appoint my sons, Pettus W. Chick and Reuben S. Chick, executors to this my last will and testament, and request them to execute it to the best of their abilities.
      Twenty-first. I hereby declare this to be my last will and testament, and revoke all other wills and testaments of a prior date to this.
      Witness my hand and seal this ninth day of February, in the year of our Lord one thousand eight hundred and forty-six.
      Twenty-first. My executors will sell the property -vyhen they think it best, and may give only twelve months’ credit on all of my personal estate; the real estate is to be sold on a credit, as above stated.
      Twenty-second. My wish is, if either of my heirs should loose negro, or more, before my decease, my executors will have it appraised, and pay over to the one that lost it its valuation; and should either of them, that I have given away, have an increase before my decease, the heir that own., the mother must pay over the valuation to the rest of my legatees, she or he, as it may be, being one of the legatees. If I have left out any negroes not willed, my executors will have them appraised, and let whichever of the heirs that has the family take it as so much paid them towards their legacy.
      Twenty-third. I wish those that have built cabins on the Sulphur Spring tract of land, to have the use of one acre of land, whereon their building sets, and the use of wood and water, as above mentioned. BURWELL CHICK, [l. s.] Witnessed in the presence of the testator, and each other by us,
      Thomas Taylor,
      Huenton Hawkins,
      Austin Taylor.
    
   The opinion of the Court was delivered by

Dargan, Ch.

The litigation is this case arises on the construction of Burwell Chick’s will. The sixth clause of the will is as follows: “ I give to my son Reuben S. Chick, in trust for my daughter Caroline T. Hodges, the following property, to wit: Bill, Liggon, Daniel, Ritter, Emery, her . children, negro slaves ; also one lot in the town of Greenville, where my blacksmith shop stands on.” It will be observed ' that the property bestowed upon Caroline T. Hodges, is given ^expressly in trust.

In the eighth clause the testator says: “In estimating, heretofore given my children,” (he means to say, in estimating the property which I have heretofore given my children,) and what I have herein specially named for the benefit of each child, as well as I can judge, the value of each will be as follows, to wit: “ Pettus W. Chick’s portion is ten thousand eight hundred and ten dollars. Reuben S. Chick’s, ten thousand four hundred dollars. Maria H. Thompson’s, ten thousand eight hundred dollars. Louisa Y. Farrs’ portion ten thousand three hundred and fifty dollars. Caroline T. Hodges portion, nine thousand four hundred dollars. Wilhelmina Chaplin’s portion is nine thousand seven hundred and fifty dollars.”

In the ninth clause he says : “ It is my desire that my executors, after named have (power) as soon as convenient after my decease (to) divide my tract of land lying in Newberry and Union Districts, into three or four tracts, as in their judgment may be best, and sell the same on a credit of one, two and three years, bearing interest from date of sale; also my Sulphur Springs and Fleming tract, with all the furniture, household and kitchen furniture, be sold in the same way; also my crop, my shares in the Rolling Mill; also my furniture at every place that I own, and all my stock at everyplace, and all and every thing that I possess, sold in like manner, not otherwise mentioned or given away.”

Tenth. It is my wish that each of my children or their trustees for them, should receive out of the proceeds of the sale of this property a sufficient sum to equalize them with my son Pettus W. Chick’s portion, that being the largest amount, and the surplus I wish equally divided in six parts 1 for the benefit of my six children, or the heirs of their ^ bodies.”

It is equally clear, that the sum which he gives his chil- ' dren, out of the proceeds of this sale, for the purpose of equaliz- ’ ing them with the portion of Pettus W. Chick, which is . §10,800, is intended, so far as the testator’s daughters are con-1» cerned to be given in trust, and' to the trustees already appointed as trustees of said daughters in regard to the property given to them, specifically, in the preceding clauses of the will. This is the decision of the Circuit decree, and there is no dissatisfaction with or appeal from that part of the decree.

But are the shares of the daughters, out of the proceeds of the sale of property directed to be made in the ninth clause, given to them in trust? The Chancellor who heard the cause? decided this question in the negative. From that part of the Circuit decree, an appeal has been taken; and that is the only question presented to this Court. The will is very inartisti-cally drawn, (prepared by the testator himself, it is said,) and no one can understand the discussion of the question before the Court, without a copy of the will before him.

This Court is of opinion, that the Chancellor was in error in holding that the shares which the testator’s daughters took, under the tenth clause of the will, were not given to them in trust. It will be borne in mind, that the property which the testator gave to his daughters, specifically, was given to trustees for their benefit; such, also, was the fact in reference to the sums which he gave his daughters, out of the proceeds of the sale, to equalize them with the portion of Pettus W. Chick. It is not doubted that this equalizing sum was given in trust, as to his daughters, as we have already seen. It is apparent, then, that it was in conformity with the general intention of the testator, that his daughters should receive, in trust, the property which he had to bestow upon them.

In the eleventh clause, the testator says, “it is my wish that the trustees of each of my daughters shall vest all funds coming into their hands, from the provisions of the eighth article of this, my will, in lands where they may think best for my daughters, or their children.” On looking to the eighth clause, it will be perceived that it contains a recitation only, and no disposition of property whatever. In the ninth clause the testator directs the sale, and the terms of it. In the tenth, he disposes of the proceeds of that sale. When, in the eleventh clause, he directs the trustees of his daughters to invest the funds which shall come into their hands, from the provisions of the eighth' clause, he, evidently, makes a mistake, and means to refer to the tenth clause. On this construction, all difficulty on the question before the Court vanishes. It, then, becomes plain, that the shares which the daughters were to receive from the proceeds of the sale, directed in the ninth clause, should be settled upon them in trust, as were the other portions of his estate given to them by his will. The judgment of this Court is, that all the property, whatever, which Caroline T. Hodges takes, or is entitled to take, under the will of Burwell Chick, including her share of the proceeds of the sale directed by the ninth clause of said will, is given to, and is to be received by Reuben S. Chick, in trust, for the said Caroline T. Hodges, and is to be held by him for the purposes of the trusts declared in the said will.

It is ordered and decreed, that all the property, estate and funds, to which the said Caroline T. Hodges is entitled under the provision of the will of the skid Burwill Chick, be delivered and paid to the said Reuben S. Chick, to be held by him in trust for the purposes above declared.

The same reasoning and construction apply to the dispositions of the -will in favor of Mrs. Maria Thompson, who has also appealed from Chancellor Dargan’s decree, on a ground similar to that taken by Mrs. Hodges. It is therefore ordered and decreed, that all property, estate and funds, to which Maria Thompson is entitled under the provisions of the will of the said Burwill Chick, be delivered and paid to her trustee, Reuben S. Chick, to be held by him for the purposes of the trust .declared in the will.

It is'ordered that the circuit decree of Chancellor Johnston and that of Chancellor Dargan, be mqdified accordingly.

Dünkin & Wardlaw, CC., concurred.

Decree modified.  