Hammett v. Hammett

Citations

• 38 S.C. 50
• 16 S.E. 293
• 1892 S.C. LEXIS 221

Syllabus

<p>1. Will — Directions—Disposable Property. — The intention of a testator, as expressed in his will, must be carried out when not in conflict with the law; and he may direct the order in which his property shall he subjected to the payment of his debts, and such direction is binding upon his distributees ; but he may not dispose of that which he had already given to his children.</p> <p>2. Ibid. — Advancements.—-A testator may, by his will, require his children to account for advancements, but if they are required to account only in case of there being a surplus for distribution, and there is no surplus, then the advances to them cannot be called technical advancements.</p> <p>3. Ibid.. — Ibid.—Technical Words should ordinarily be construed in their ■technical sense, but where a testator held notes and accounts on his children, which he directs should be collected on a certain contingency and applied to his debts before a specific devise to his wife shall be so applied, his direction must be carried out, even though he calls them advancements.</p> <p>4. Ibid, — Assets.—A judgment against a son-iu-law of testator, paid by the executors, the testator being a surety, is an asset- of the estate, and does not stand upon the same footing as debts due by the children, which were to be collected only in case of deficiency of other assets.</p> <p>5. Will — Assets.—Debts once due by the children, but marked satisfied by testator in his lifetime, are not assets of the estate.</p> <p>6. Homestead.— The question of the right of the children to a homestead is premature.</p> <p>7. Petition por Rehearing refused.</p> <p>8. Remittitur — New Trial — Will—Jurisdiction.—A petition to stay the remittitur, so that the petitioner may move the Circuit Court for a rehearing, on the ground of after-discovered evidence, cannot be entertained when it is ex farte and unsupported by affidavits, and where the alleged evidence would raise an issue of devisavit velnon — an issue of which neither t