Mobley v. Cummings

Citations

• 35 S.C. 101
• 14 S.E. 721
• 1892 S.C. LEXIS 171

Syllabus

<p>1. Findings or Fact — Gifts.—This court approved findings of fact by the Circuit Judge, from written testimony reported to him to the effect that an alleged deed had never been executed, and that there never had boon a parol gift of the land in question, but at most only an unfulfilled intention to give.</p> <p>2. Construction op Wild — Separate Clauses. — A testator gave to his wife the residue of his estate, with a power of distribution among certain of his children, directing that the portions so assigned should be charged by her with certain limitations and remainders. He then declared that upon the death of his wife before him, he gave said residue to his son A to divide according to the son’s discretion, among certain of testator's children, the son A retaining for his own use, and as trustee for his brother R, so much as he thought proper. Then, after a period in punctuation, testator further directed that if his wife survived him, and died after a partial execution of the trusts, the son A should carry out and perfect the trusts imposed upon the wife. And in another clause testator engrafted limitations upon all property received by said sons A and R. The testator having survived his wife, held, that no limitations were imposed upon the portions of the residue received by his children, except upon the portions of the said two sons.</p> <p>3. Ibid. — Ibid.—The intention of a testator, to be reached by a consideration of the words he has used, and not from conjecture, must control in the construction of a will; and limitations imposed by one clause under one contingency cannot be applied to dispositions made in another clause under another contingency, even though the court can see no reason for the distinction.</p> <p>4. Execution of Powers by Court — Equality.—The share of the residue retained by A for himself at his discretion, was limited to himself for life, with remainder to his issue, but he having died without having fully exercised this power of di