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Opinion of the Court.

appointment by her last will and testament, as provided by the will and codicil of Mrs. Calhoun, the plaintiff's father, acting for her, and Clemson, as trustee under the will and codicil of Mrs. Calhoun, made an informal partition of the property, and since that time the plaintiff had been in possession of about 300 acres of it, and the remainder of it, consisting of about 814 acres, had been in possession of Clemson up to the time of his death, and since that time in the possession of the defendant, claiming under Clemson, as trustee under the will and codicil of Mrs. Calhoun ; that Mrs. Clemson died in September, 1875, without having exercised the power of appoint ment conferred upon her by the will and codicil of Mrs. Calhoun; that thereupon the plaintiff became entitled, in feesimple absolute, to the three-fourths of the property then in the possession of Clemson, as trustee, and to the rents and profits of that part of the property from that time; that Clemson remained in possession of that part of the property subject to the trusts of the will and codicil of Mrs. Calhoun, from the time of the death of Mrs. Clemson until he died, in April, 1888, leaving the plaintiff his sole heir at law, during the whole of which time he collected the rents and profits of the property, amounting in all to over $31,000, without including interest; that since the death of Clemson the defendant had in some manner, claiming under Clemson, acquired possession of the 814 acres, and of the rents and profits thereof, without having been appointed trustee under the will and codicil of Mrs. Calhoun; and that the defendant was about to make a deed of the 814 acres, and of such accumulated rents and profits, to uses and purposes which would wholly defeat such rights of the plaintiff'.

The bill waived an answer on oath, and prayed for an accounting by the defendant of the rents and profits of the $14 acres; that the trusts on which Clemson held the property be declared ; that the cloud upon the plaintiff's title to it be reinoved; that she be adjudged to hold the property in feesimple absolute; that the defendant account for the personal property in which Mrs. Clemson had a life estate, and in which the plaintiff has an estate in remainder or otherwise,

Opinion of the Court.

which came into his possession; and that he be enjoined from conveying any part of the property, or any of the property of which Clemson died possessed, to any use or trust which would tend in any manner tọ cloud the title of the plaintiff or defeat her rights in the premises; and for general relief.

The answer set up that Mrs. Clemson, by her last will and testament, duly executed and duly admitted to probate, disposed of the property held under the trusts of the will and codicil of Mrs. · Calhoun, in favor of her husband, Thomas G. Clemson; that from and immediately after her death the property vested in him in fee-simple; and that his continuous and undisturbed possession thereof. from that time was in his own right, and not as trustee.

After a replication, proofs were taken, and the case was heard by the Circuit Court, with the result before stated.

The opinion of that court is reported in 39 Fed. Rep. 235. It passed upon what is the only material question in the case, namely, as to whether Mrs. Clemson, by her will, exercised the power given to her by the will and codicil of Mrs. Calhoun, to dispose of the bequest of three-fourths of the interest of Mrs. Calhoun in the bond and mortgage debt of Andrew P. Calhoun, amounting to about $40,200. The conclusion of the court was, that the will of Mrs. Clemson referred to the property which was the subject of the power and also to the power itself; that it was her intention to dispose of the property in question by her will; and that such intention was carried out in due execution of the power.

The recital in the will of. Mrs. Clemson is as follows: " Whereas I am entitled to legacies under the last will of my deceased mother, Floride Calhoun, and to a distributive share in the several estates of my deceased sister, Cornelia Calhoun, and my brother, Patrick Calhoun, and, notwithstanding my coverture, have full testamentary power to dispose of the same." It then proceeds as follows: "I will, devise and bequeath the entire property and estate to which I am now in any wise entitled and which I may hereafter acquire, of whatever the same may consist, to my beloved husband, Thomas G. Clemson, absolutely and in fee-simple; but should my husband,

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Opinion of the Court.

Thomas G. Clemson, depart this life, leaving me his survivor, or should he survive me and then die intestate, in either event I will, devise, and bequeath my entire property and estate, as 'well as that which I may hereafter acquire, of whatever the same may consist, to my granddaughter, Isabella Lee, the child of Gideon Lee, of the State of New York, absolutely and in fee-simple.”

As Mrs. Clemsou died before her husband, and as he did not die intestate, this last devise and bequest to the plaintiff did not become, operative, and the clause containing it is of no effect, except as its language may bear upon the proper construction of the entire instrument.

The view taken by the Circuit Court was that, as Mrs. Clemson had the right, for her life, to the enjoyment of the property held in trust for her under the will and codicil of Mrs. Calhoun, and the absolute power of disposing of it by will, she treated it by her will as being as much hers as the. distributive share, referred to in her will, in the several estates of her sister and brother; that it would be too narrow and technical a construction of the will, under the circumstances, so to limit the language of the devise and bequest as to exclude the exercise of the power; that the mention of the distributive share in the estates of her sister and her brother allowed it to be said that the language of the devise and bequest might have some effect by means of her interest in such distributive share, but that would not be all the effect which the words imported; that, if the intention to pass the property held in trust could be discovered, such intention ought to prevail; that the intent to dispose of such property was apparent on the face of the will; that, as it plainly referred to the property covered by the power, its language could not be satisfied unless the instrument should operate as an execution of the power; that the recital in the will that, notwithstanding her coverture, she had “full testamentary power to dispose of the same,” (referring to the legacies under the will of her mother and to a distributive share in the estate of her sister and brother,) could not be regarded as merely a reference to the fact that, shortly before that time, married women in South

Opinion of the Court.

Carolina had, by the constitution of 1868, and the legislation consequent thereon, been enabled to dispose of their property by will, because, in that view, such statement would have been wholly uncalled for, as she could alienate her own property in any way she chose, while the property held in trust for her for her life could be disposed of by her only by will; and that, therefore, the more reasonable inference was that she referred, by the words “full testamentary power," to the will of ber mother, rather than to her own recently acquired legal capacity, though a married woman, to make a will, as to the property in which she did not have merely a life estate, with a power of appointment.

By the will and codicil of Mrs. Calhoun, the following bequests or legacies were left to Mrs. Clemson : (1) A bequest for life of three-fourths of the bond and mortgage debt due by Andrew P. Calhoun; (2) A devise and bequest for life of certain real estate, furniture and other personal property mentioned in the second clause of the will and in the second clause of the codicil; (3) A share for life, in a part of the residuary estate left after the payment of debts; (4) A share for life in the remainder of such residuary estate, if her grandsons should die under age and without issue ; (5) Her grandmother's portrait. All of these legacies, except such portrait, were made to Mrs. Clemson for her life. In regard to the portrait, as Mrs. Calhoun died in July, 1866, and Mr. and Mrs. Clemson were then both of them living the rights of Mr. Clemson under the common law rule immediately attached to the portrait, and it became at once his personal property. The legacies to Mrs. Clemson or for her benefit were all personal property at the time of her death. The fifth clause of the codicil to the will of Mrs. Calhoun directs that if Fort Hill, the property in question, should be purchased with the bond and mortgage debt, the property so purchased should “ be considered and held to be in the place of and the same as the aforesaid bond and mortgage,” and should “pass under this codicil as if the same were still in the form of said bond and mortgage,” that is to say, should pass to Mrs. Clemson and her daughter Floride, as the “aforesaid bond and mortgage debt is directed to

Opinion of the Court.

be divided between them.” In her will and codicil, Mrs. Calhoun speaks of the provisions made for Mrs. Clemson as “ bequests,” and also as the “property' given to her.

At the time Mrs. Clemson's will was made, the court had ordered, in July, 1871, the sale of the Fort Hill property to satisfy the mortgage debt, which then amounted to over $65,000. It was manifest that the property would have to be purchased by the mortgagees; but as, in fact, it had not been purchased when the will was made, the mortgage debt was still, under the will of Mrs. Calhoun, a legacy of personal property, and would be spoken of properly, in the will of Mrs. Clemson, as a legacy to which she was entitled under the will of her mother. Moreover, by the terms of that will, the investment in the Fort Hill property was still to be considered as personal property.

Mrs. Clemson's distributive share in her sister's estate was, at the time Mrs. Clemson made her will, of small value, as she ultimately received from it, at most, only $601.94. Her share in her brother's estate was at that time also small, amounting only to $120.49, although, in fact, she received $150. This was all the property which she had, or supposed she had, when she made her will, and all that she intended to dispose of.

The rents which had accumulated on the Fort Hill property before it was sold under the decree of foreclosure did not belong to Mrs. Clemson, but belonged to the estate of Andrew P. Calhoun, the mortgage debtor; and when they were received by Mr. Clemson in part payment of the debt they were to be held by him as trustee of Mrs. Clemson under the will and codicil of Mrs. Calhoun.

in the position occupied by Mrs. Clemson when she made her will, as we are authorized to do, in view of the circumstances then existing, in order to discover from that stand point what she intended, Blake v. llawkins, 98 U.S. 315, 324; Postlethwaite's Appeal, 68 Penn. St. 477, 480; McCall v. McCall

, 4 Richardson Eq. 448, 455; Scaife v. Thompson, 15 So. Car. 337, 357; Clark v. Clark, 19 So. Car. 315, 348, 349, we are of opinion that the will of Mrs. Clemson was intended by her to be, and was, a full execution of the

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