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Citations for Appellee.
Mass. 131; Jackson v. Chew, 12 Wheat. 153; Henderson v. Griffin, 5 Pet. 151; Carroll v. Safford, 3 How. 441; Lane v. Vick, 3 How. 464; Denn v. Rocke, 5 B. &. C. 720; S. C. (House of Lords); 4 Bligh, N. S. 1; Williman v. Holmes, 4 Rich. Eq. 475; Scott v. Burt, 9 Rich. Eq. 358; Aaron v. Beck, 9 Rich. Eq. 411; Wilson v. Gaines, 9 Rich. Eq. 420; Pulliam v. Byrd, 2 Strob. Eq. 134; Bradley v. Westcott, 13 Ves. 445; Chittenden v. Brewster, 2 Wall. 191; Bunce v. Gallagher, 5 Blatchford, 481; Plant v. Barclay, 56 Alabama, 561; Blomfield v. Eyre, 8 Beavan, 250; Dormer v. Fortescue, 2 Atk. 282; Bennet v. Whitehead, 2 P. Wms. 643; Morgan v. Morgan, 1 Atk. 489; Roberdeau v. Rous, 1 Atk. 543; Curtis v. Curiis, 2 Bro. Ch. 620; Doe v. Keen, 7 T. R. 386; Mansell v. Mansell, 2 P. Wms. 678; Bilderback v. Boyce, 14 So. Car. 528; Standen v. Standen, 2 Ves. Jr. 589; Ellison v. Ellison, 6 Ves. 656; Andrews v. Emmot, 2 Bro. Ch. 297; Bennett v. Aburrow, 8 Ves. 609; Langham v. Nenny, 3 Ves. Jr. 467; Mory v. Michael, 18 Maryland, 227; Lovell v. Knight, 3 Sim. 275; Weatherhead v. Baskerville, 11 How. 329; Fay v. Fay, 1 Cush. 93; Hatfield v. Sohier, 114 Mass. 48; Doe v. Considine, 6 Wall. 458; In re Clinton's Trust, L. R. 13 Eq. 295; Pratt v. McGhee, 17 So. Car. 428; Jones v. Curry, 1 Swanston, 66; Evans v. Evans, 23 Beavan, 1; Osgood v. Bliss, 141 Mass. 474; Sewall v. Wilmer, 132 Mass. 131, and cases cited; White v. Hicks, 33 N. Y. 383; Funk v. Eggleston, 92 Illinois, 515; Andrews v. Brumfield, 32 Mississippi, 107; Webb v. Honnor, 1 Jac. & Walk. 352; Bingham's Appeal, 64 Penn. St. 345; Wetherill v. Wetherill, 18 Penn. St. 265; Patterson v. Wilson, 64 Maryland, 193; Pease v. Pilot Knob Iron Co., 49 Missouri, 124; Blake v. Hawkins, 98 U. S. 315.
Mr. Joseph H. Earle, Mr. Augustine T. Smythe and Mr. A. M. Lee, for appellee, cited: Watts v. Lindsay's Heirs, 7 Wheat. 158; Fenn v. Holme, 21 How. 481; Fussell v. Gregg, 113 U. S. 550; Blake v. Hawkins, 98 U. S. 315; Postlethwaite's Appeal, 68 Penn. St. 477; Clark v. Clark, 19 So. Car. 345; Scaife v. Thomson, 15 So. Car. 337; Ladd v. Ladd, 8 How. 10; Crane v. Morris, 6 Pet. 598; Kelly v. Jackson, 6
Opinion of the Court.
Pet. 622; Blagge v: Miles, 1 Story, 426; Warner v. Connecticut Mut. Ins. Co., 109 U. S. 357; Carnagy v. Woodcock, 2 Munford, 234; S. C. 5 Am. Dec. 470; Reck's Appeal, 78 Penn. St. 432; Still v. Spear, 45 Penn. $t. 168; Finlay v. King, 3 Pet. 346; Maundrell v. Maundrell, 10 Ves, 246; Canedy v. Jones, 19 So. Car. 297; Boyd v. Satterwhite, 10 So. Car. 45; Bilderback v. Boyce, 14 So. Car. 528; Moody v. Tedder, 16 So. Car. 557; Roach v. Haynes, 8 Ves. 584; Curteis v. Kenrick, 9 Sim. 443; Munson v. Berdan, 8 Stewart, (35 N. J. Eq.) 376; White v. Hicks, 33 N. Y. 383.
MB JUSTICE BLATCHFORD delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of the United States for the District of South Carolina, dismissing the bill of complaint of Isabella Lee, an infant, by her next friend, Gideon Lee, against Richard W. Simpson.
The following are the material facts involved in the case :
On May 13, 1854, Mrs. Floride Calhoun was seized and possessed of the tract of land situate in that part of Pickens district which is now Oconee County, in the State of South Carolina, on the east side of the Seneca River, known as the Fort Hill place, containing eleven hundred and ten acres, more or less, and on that day she and her daughter, Cornelia M. Calhoun, sold and conveyed that tract of land, together with certain personal property, to Andrew P. Calhoun, for the sum of $49,000, Cornelia M. Calhoun having no interest in the real estate. Andrew P. Calhoun executed his bond under seal to Mrs. Calhoun and Cornelia, conditioned for the payment of $40,200 to Mrs. Floride Calhoun, and the remaining $8800 to Cornelia, and, to secure the payment of the bond representing the purchase money, and as a part of the same transaction, at the same time executed and delivered to Mrs. Calhoun and Cornelia separate mortgages of the same tract of land and of the personal property, to secure the payment of the sums of money mentioned in the bond.
On the 27th of June, 1863, Mrs. Calhoun made her last will and testament, whereby, among other things, she devised and bequeathed as follows:
Opinion of the Court.
“ 2. To my daughter Anna Maria, wife of Thomas G. Clennson, of Maryland, I give, devise and bequeath during her life, and for her sole and separate use, the following property: My house and lot in Pendleton and the land attached and belonging thereto, purchased by me from Mrs. William Adger, together with the furniture and everything in the house and upon the premises, reserving, however, the silver and such other articles as I may hereinafter specifically give to others; also all my jewelry and the silver cross and prayer-book presented to me by the church at Newport, Rhode Island. At Anna's death I devise and bequeath all the above-mentioned property to her daughter, Floride Clemson, and at the death of Floride, if she dies without issue, I devise and bequeath it to my sons', John's and William's, children then living, equally among them, or, if they be dead, to their issue then living."
“ 19. I am possessed still of a large residue of property, consisting principally of a debt due me by my son Andrew for the purchase of Fort Hill, amounting to about forty thousand two hundred dollars, secured to me by bond and mortgage. I have also an unsecured interest in a gold mine in Dahlonega, Georgia, belonging to the estate of my late husband, and also an interest in the estate of my second son, Patrick, and second daughter, Cornelia, besides other property. Whatever real or personal property I may possess at my death and not hereinbefore specifically or otherwise disposed of, I direct my executors to sell whenever they shall deem it advisable. I direct my executors to collect, as fast as possible, the above-mentioned residue of my estate, and, after paying off my debts and the legacy to Calhoun Clemson, the remainder I wish divided into four parts, which I dispose of as follows:
“ 20. One part, being the fourth of the above residue, I give and bequeath to my daughter Anna during her life and for her sole and separate use; and at her death I will and bequeath it to her daughter Floride, and at Floride's death, if she dies without issue, I will and bequeath it to the children of my deceased sons, John and William, then living, equally among them, or to their issue if they be dead; issue to represent the parent. The better to effect my intentions in regard
Opinion of the Court.
to the property in this and the second clause given to Anna, I appoint Edward Noble, of Abbeville, trustee for it and vest in him the legal title. Should Anna at any time wish to sell the house and lands in Pendleton or all or any portion of the property given to her for life, the trustee, provided it meets with his approval, is authorized to dispose of it according to the wishes of my daughter, upon having her written request for so doing. The proceeds of such sale the trustee shall hold subject to the trusts and limitations declared in reference to the original property. The trustee is authorized and required to invest the proceeds, and also the fourth part of the residue herein given to her, in such property or in such way as she may in writing direct, provided it meets with his approval. The trustee is authorized and required from time to time to change such investments as often as he may be directed so to do by my said daughter in writing, provided it meets with his approval, holding always the substituted property or reinvestments subject to the trusts and limitations aforesaid. If from death or any other cause there is no trustee, or if Anna at any time shall desire to change her trustee, she shall have the power so to do and to appoint another by any instrument in writing, under seal, executed by her in the presence of two subscribing witnesses; and as often as she may desire to change her trustee she shall have the power so 'to do by observing the form and solemnity above described.
“ 21. One-fourth part of said residue of my said estate I give and bequeath to my granddaughter, Floride Elizabeth Clemson, but if Floride should die without leaving issue I give and bequeath it at her death to the children of my sons John and William, or the issue of them if they be dead, the issue to take by representation.
22. The remaining two-fourths I dispose of as follows: To Kate P. Calhoun, my daughter-in-law, I give and bequeath the one-half of the one-fourth of said residue of my estate, to be enjoyed by her during widowhood. At her death or marriage, whichever first happens, I give and bequeath the same to such of her children - being my grandchildren - as may then be alive; but should either of my said grandchildren die
Opinion of the Court,
under twenty-one years of age, leaving no child or children, the share of such deceasing grandchild shall go to the survivors or survivor of them or their issue, the issue representing the parent. If Kate should die before me, what I have given her in this will is not to revert to my estate, but is to go to her children — my grandchildren - living at my death, subject to the conditions and limitations above expressed.
“23. The remaining fourth and half of a fourth of the aforesaid residue of my estate I give and bequeath to my grandsons, John C. Calhoun and Benjamin A. P. Calhoun, sons of my deceased son John, and William Lowndes Calhoun, child of my second son William, equally among them; and should either of them die under twenty-one years of age, leaving no issue, the share of such deceased child shall go to the survivor or survivors.”
On the 22d of January, 1866, Mrs. Calhoun duly made a codicil to her last will and testament, wherein, among other things, she revoked the devise of the real property in Pendleton made to Anna Clemson in the second paragraph of her will, and devised the same to other persons, and provided as
“2. By the nineteenth clause of the will I directed the said bond debt on my deceased son Andrew, secured by mortgage on Fort Hill, together with all other property possessed by me and not before disposed of, to be collected by my executors and the proceeds to be divided into four parts. One part I gave to Anna, one. part to her daughter Floride, and the two other parts to Kate and her children, as will appear by clauses 20, 21, 22 and 23 of the will. I desire now to change the disposition of the said bond and mortgage debt, and do now give and bequeath it in the following manner: Three-fourths of my interest in said bond and mortgage debt, amounting to about forty thousand two hundred dollars, I hereby give and bequeath to my daughter, Anna M. Clemson, to be enjoyed by her under clause twenty of the will, and according to the provisions of that clause to vest in the same trustee and to be subject to all the powers, trusts, conditions and limitations of that clause precisely as the bequests therein made were sub