South Carolina. Court of Appeals.

Reports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) online

. (page 16 of 50)
Online LibrarySouth Carolina. Court of AppealsReports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) → online text (page 16 of 50)
Font size
QR-code for this ebook

a prohibition. The decision of this Court in the Orphan
House Asylum Society vs. McCarler, is conclusive on this
question. Allhough the decision of Chancellor Jones, in
that case, was reversed, it was solely on the ground that the
devise to the corporation was direct, and not to the executors
in trust. Indeed, Mr. Justice VVoodworth, who delivered the
opinion of the majority of the Court, * * admits that if the
legal estate had remained in the executors in trust for the
corporation, and they had refused to pay over its portion of


American Bible Society vs. Noble.

the proceeds of the property on a sale thereof, the complain-
ant would have been entitled to relief.

''The cases referred to by the defendant's counsel," he
proceeds, "are founded upon the prohibitions of the statute
of 9 George II, ch. 36, (l Evans statute 324,) under which
statute, although it contains no express words prohibiting a
bequest of money to be produced by the sale of lands, for
cliaritable purposes, it has been settled by construction that
such a bequest is void, as being within tlie spirit and mean-
ing of the Act — (14 Ves. Rep., 541.)"

I have no better indication of the law of New York under
the revised statutes than the intimation of Chancellor Wal-
worth in this extract. I have not access to the judgment of
Chancellor Jones, referred to. But as both these are favorable
to the view I entertain myself, I conclude that this corpora-
tion is entitled to its legacy. It will be observed that I have
left untouched the fact that the testator has directed a sale out
and out of realty and personalty indefinitely, which, of itself,
equitably impresses the character of personal estate on the

The last charter is that of the American Tract Society,
which is also from New York. It is also authorized to" hold,
purchase and convey such real and personal estate as the
purposes of the corporation shall require, not exceeding the
amount limited in its charter," the net income of which
"shall not exceed $5,000 annually."

This corporation stands upon similar legal principles with
the American Bible Society, and is entitled to its legacy.

It is ordered, that the accounts in the case be referred to the
commissioner, and that he state and report them.

That tlie commissioner be authorized to make sale, upon
such credits as he may fix, (not ditfering from such as are
usual in such cases,) of such portions of the estate, real or
personal, as according to the foregoing opinion are subject to
sale, and yet remain unsold, giving at least three weeks' public
notice thereof in the Abbeville newspapers, and in some one


Columbia, Novenil)er and December, lb09.

of the Charleston newspapers, and requiring bond, with at
least two good sureties, and a mortgage of the premises,
wliere land is sold, to secure all sums of and over twenty-
dollars, and cash for all sums under that amount.

And let the parties have leave to apply for any further
necessary order.

Tlie costs to come out of the estate.

The heirs-at-law appealed on the grounds:

1. Because, the will of John B. Bull, properly construed,
does not dispose of the plantation called " Berry Hill," which,
having been purchased by the testator in his lifetime, does not
pass under the words "Of the estate of my much respected
and greatly lamented brother, Gen. William A. Bull, deceased,

2. Because, there is no general residuary clause in John
B. Bull's will, sufficient to carry any part of his estate not
covered by the direct gifts, all the directions in the will after
the words " of the estate," &c., having manifest reference to
that property and no other.

3. Because, the post nati children born of the negroes
given to Mrs. Sarah Bull, in the second clause of the will,
and the provisions, crops, ancJ all articles at Little River, not
mentioned in said clause, are intestate — the terms of the
direct bequest being limited to the negroes in esse at the time
tlie will was executed, and there being no general residuary
clause sufficient to dispose of said negroes, and other property.

4. Because, the exception in the Act of 1734 constitutes s
positive prohibition against devisins; any estate or interest in
/and io bodies politic or corporate; and the device to defeat
the law and accomplish the same purpose indirectly — by
ordering the lands sold, and proceeds given — should have
been declared void, as opposed to the spirit of the express
law, as well as to the principles of equity and sound morality.

.5. l^ecatise, the charter of the three foreign rorporations —
being laws of foreign Stales — cannot repeal the South Carolina


American Bible Soc-iety vs. Noble.

prohibition, nor enable said corporations to take anything
from Sonth Carolina not allowed by the laws of South Caro-
lina. Charters of foreign corporations cannot give license to
dispense with our law in regard to them.

6. But if otherwise, then neither the Bible Society nor the
Tract Society, chartered by the State of New York, can take
any part of the provision made for them, even according the
Revised Statutes of that State, which declare that corporations
shall exercise no powers which are not expressly given. The
right to " purchase and hold" does not necessarily include
the right to take by " devise,^" or even " bequest."

7. The trustees of the "Presbyterian Board of Publication,"
chartered by the State of Pennsylvania in 1S47, cannot take
the ybi/?V/i claimed by them under Bull's will, executed in
1843 — because the gift, made before the corporation had any
existence, is not to the corporation chartered or in the terms
of the charter; and also, because of the statutes of mortmain,
which are of force in that State.

8. The Theological Seminary cannot take the one-fourth
of the lands intended for them, because its charter, although
a license to the extent it goes, does not conflict with the Act
of 1734, or expressly confer the right to take by devise.

9. Because, it is respectfully but earnestly submitted that
there is no law or principle of equity whicli requires the
Court to decree the whole of this large estate away from
the heirs-at-law, and give it to irresponsible, soulless |)olitical
corporations, some of which are foreign to our jurisdiction,
alien to our policy, and under the control of persons, and the
exclusive government of States inimical to our institutions.

James Morrow, one of the defendants, appealed on the
grounds :

1. Because his Honor held that the negroes born after the
making of the will, are not embraced in the bequest to Sarah
Bull, in the second or other clause of said will.

2. Because said slaves, if not embraced in said bequest, are


Columbia, Novemljer and December, 1809.

intestate; and two-thirds of them, or their value, should have
been declared the right of James Morrow.

3. Because liis Honor should have held the bequest of
$5,000 to James Morrow, his absolute property; or declared
fully what his estate was; with interest on the same from tes-
tator's death.

4. Because tiie pleadings made the question, whether the
executor should pay to James Morrow, the debt acknowledged
by the testator, in his will, as due the estate of David Mor-
row, deceased ; which the executor declined to pay without
instruction, and was claimed by the defendant, James Mor-

The executor appealed from so much of the decree as
orders the commissioner in equity to sell Berry Hill, on the
ground :

Because the will directs the sale to be made by the execu-
tor, and it is his riglit and privilege to make it.

McGowaji, for the heirs-at-law, cited on first ground : Law-
ton vs. Hunt, 4 Rich, Eq., 247 ; JVillis vs. Soyers, 4 Mad.,
209; 8 T. R., 375; 4 Maul. & Sel., 550; Gilb. on Dev., S4; 1
Jarm. on Wills, 720 ; on third ground : 1 Jarm. on Wills, 693;
Buist vs. Dawes, 3 Rich. Eq., 281 ; Tydiman vs. Rose, Rich.
Eq. Cases, 294; 1 Rop. on Leg., 188; on fourth and following
grounds: Act 17S9, 5 Stat., 110; Act 1731, 3 Stat., 382; 2
Brev. Dig., 335: Hill on Trustees, 1, 65,84,196,691,705;
10 Ves., 540; 9 Ves., 399; 2 Vern., 387; Brown vs. Lei^fi, 1
Ves., 501, note; 3 Meriv., 19; 2 Story Ecj., § 1183; Foun-
tain vs. Ravenel, 17 How., 369; Attorney General vs. Christ's
Hospital, 4 Beav., 74; 2 Keen., 150; Mayor of S. B. vs.
Attorney General, 5 H. L. C, 1 ; Haskel vs. Rowe, 3 Brev.,
242 ; Tfiompson vs. Gaillard, 3 Rich., 418; 2 Ves., 179; Sug.
on Pow., 115; Burnett vs. Noble, 10 Rich., 530; I VVms. on
Ex'ors, 554 ; White and Tudor, L. C, 594 ; Dud. Eq., 212 ;
Lindsay vs. Pleasant, 4 I red. E(]., 3'i\ ; Craig vs. Lester ^ 3


American Bible Society vs. Noble.

Wheat., 560; Baptist vs. Hart, 4 Wheat., -10; 1 Bro. Ch.,
503; 2 Fonb., 212, note; Amb., 20; Maggs vs. Hodge, 2 Ves.,
52; Shelf, on Mortm., 87; Grant, on Corp., 128; Ang. & Ames
on Corp., 168 ; 1 M. & K., 368, note; Hobart, 136 ; Porter's
Case, 1 Coke, 22; 4 Kent, 250; 4 Paige, 41.9; Ang. & Ames
on Corp., 138; IVilbank vs. Martin, 2 Harrington, 18; Roper
vs. Radcliff, 9 Mod., 167; De Costs vs. Diipass, Amb., 228;
Woodman vs. Woodruff, Amb., 636 ; 9 Ves., 399 ; Dwar. on
Stat., 31 ; 2 Rev. Stat. N. Y., 2 ; 1 Rev. Stat. N. V^., 720;
Watson vs. Child, 9 Rich. Eq., 129.

Fair, for JMorrow, cited : Garret vs. Garret, 2 Sirob. Eq.,
272 ; Roberts vs. Leslie, 9 Rich. Eq., 35; Jasper vs. Maxwell,

1 Dev. Eq., 357 ; Perry vs. Logan, 5 Rich. Eq., 215; Matfiis
vs. Griffin, 8 Rich. Eq., 79.

Noble, for the execntor, cited : Osborn vs. Black, Sp. Eq.,
435; Thompson vs. Palmer, 2 Rich. Eq., 36 ; Gist vs. Gist,

2 McC. Ch., 474; 2 Story Eq., § 1060; Crossland vs. Mur-
dock, 4 McC, 218; 1 Wms. on Ex'ors, 451; 2 Wtns. on
Ex'ors, 687 ; Drayton vs. Grimke, Bail. Eq., 392 ; 5 Stat., 15 ;
Britton vs. Lewis, 8 Rich. Eq., 271 ; Sug. on Pow., 167, 172.

Perrin, for corporations, cited : Chapman vs. Brown, 3
Bnr., 1634; Gore vs. Langdon, 2 B. & Ad., 680; 22 Eng.
C. L. R., 285; Bodenham vs. Pritchard, S Eng. C. L. R., 150;
Goodtitle vs. Southern, 1 M. & S., 299 ; An. & A. on Corp.,
134; 1 Kyd on Corp., 104; Bac. Ab. Corp., F, 2 ; 2 Lord
Ray., 1532 ; 1 Sira., 612 ; 2 Kent, 285, n ; Jiw^usta vs. Earle,
13 Pet., 519 ; 1 Bro. C. C, 497 ; Dougald vs. Ball, 2 P. W.,
320 ; Trelawney vs. Booth, 2 Atk., 307 ; Craig vs. Leslie, 3
Wheat., 564 ; fastis vs. Brown, 6 Paige, 448 ; Perry vs.
Logan, 5 Rich. Eq., 202 ; Attorney General vs. Jolly, 1 Rich.
Eq., 99; Gibson vs. McCall, 1 Rich., 174; Shelf, on Mortm.,
73; Gerard vs. Vidal, 2 How., 127; 3 Pet., 99; 7 Serg. &
Raw., 320: 2 Kent, 283; 1 Watts, 218; Perd. Dig., 350.


Columbia, November and December, 1859.

McCrady, for American Tract Society:

To purchase lands and hold them for the benefit of them-
selves and their successors, (I Black. Com., 475, 47S,) was
incident to every corporation at common law. It is not,
therefore, any incapacity in the corporation to take and hold
which can prevent the de'vise, but some disability, created
by our own statutes, must be shown. Mortmain Acts did
not artect the colonies, 2 Merivale, 143, 160; attorney Gen-
eral vs. Stewart. This disability, it is said, is to be found in
the A. A. 1734, entitled an Act for making more effectual
and for making valid all former wills in this province, &c., sec.
2d, 3 Stat, at Large, p. 341, 3S2, in which " bodys politick and
corporate are excepted from being devisees." That is, it is
a disability in the devisor, and not the incapacity or disabil-
ity of the corporations. If the power, liberty, or privilege,
to devise lands in this State were derived entirely from the
Act of 1734, the exception would certainly make any devise
to corporations void. But if this power, liberty, or privilege,
need not be derived from them, it need not be subject to the
exception. I, therefore, will endeavor to maintain these two

1. That lands in this province were, long before the pas-
sage of the Act of 1734, devisable without any restraint.

2. That this Act did not curtail or restrict the right of
devise before enjoyed by the citizen.

As to the first ; that lands were devisable before the Act
of 1734. We go back to what must be considered by us as
the fountain head of all property and right of property in our
soil, that is, to the charters granted to the lords proprietors,
dated respecHvely 15th March, 1663, and 30th June, 1665.
By the fourth clause or section of the first, (1 Stat, at Large,
pp. 22, 23,) and third of tlie second, (lb., 31, 33,) the whole
territory was granted to the proprietors and their heirs by
their king, "to be holden of us, our heirs and successors as
of our manor of East Greenwich in Kent, in free and com-
mon socage, and not in capile or by knight's service." We


American Bible Society vs. Noble.

do not positively know how this manor of East Greenwich
was held, but as it was in Kent, we may fairly presume it
was ga^'elkind. "All the lands in Kent are presumed to be
in gavelkind, because it is morally impossible now to sliow
to a certainty what lands were disgavelled." Bac. Abr., 2
vol., tit.. Gavelkind, B, marginal note. "The lands in Kent,
generally, are of the nature of gavelkind, which custom there
is like the common law elsewhere." Com. Dig., 4 vol., title,
Gavelkind, H.

If this holding intended by the charter was in the nature
of gavelkind, then the lands in this province were devisable
by the grantees, the lords proprietors; for, says Lord Bacon,
"all gavelkind land is devisable, for the allodial property
doth follow the rules of the civil law, which permits any
person to make his will and to dispose of his estate; and
this notion the clergy seem to have brought over unto all
those allodial possessions, and the custom hath continued
ever since." Bac. Abr., 2 vol., title. Gavelkind, A.

So Gilbert on Devisees, p. 84: "For the people of Kent,
where the custom of gavelkind most prevails, happily secured
their land from any innovation of the Conqueror, so that
after the conquest, they still continued free, and not subject
to the feudal duties, &c.; therefore, that people still contin-
ued their old power and custom to dispose of their lands
according to the natural notion of property, by loill or alien-
ation." And so it was decided in Lminder vs. Brookes, Cro.
Car., 561.

The mere fact that the manor of Greenwich was in Kent,
is, therefore, almost conclusive, that the grant enabled the
grantees, the lords proprietors, to devise without restriction,
and that they so took and held all the lands of the prov-
ince. In fact the statute of Frauds, sec. 5, recognizes the
power of devise as a Kentish custom, and not as gavelkind —
"according to the custom of Kent," is the language — and
thus we have, as it were, a declaration of the meaning of the


Columbia, November and December, ISSO.

charter, to give the power to devise, by the grantor himself,
as well as by his parliament.

But this is pnt beyond question by the provision of the
seventh clause or section of both charters, 1 Stat. pp. 25
and 35, that " all the subjects and liege people" of the
king, transported to the province, should be considered still
liege, faithful people, and may inherit or otherwise purchase
and receive, take, hold, and buy, and possess any lands, tene-
ments, or hereditaments, within the said places, and them
may occupy and enjoy, sell, alien and bequeath. Both the
proprietors and their grantees then took the lands in this prov-
ince as lands devisable, and devisable according to ancient,
lawful customs of England, before the statutes of 32 and 34
Henry VIII.

In addition to this, we have very conclusive proof that it
was so understood by the people of the province themselves,
in the remarkable and otherwise unaccountable omission to
adopt either of the statutes of Henry VIII, authorizing
devises, when in 1712 they adopted so many other statutes,
together with the criminal law, and intended to frame their
code; and that they had no fear of corporations appears from
the fact, that none of the statutes of mortmain were ever
made of force.

We are then next to inquire whether this right of devise,
coeval with the right of property, was at any time before the
Act of 1731, abolished or restricted. Nothing can be sug-
gested as affording any possible ground for such a supposi-
tion, unless, perhaps, the adoption of the common law, or
the surrender of ihe charters by the proprietors; neither, how-
ever, could have had such an effect.

1. As to the adoption of the common law. It would be
clearly against the intent of the statute, which, it is to be
observed, cautiously adopted only such parts of the common
law as were not "inconsistent with the particular constitu-
tions, customs, and laws of this province." But even with-


American Bil)le Society vs. Noble.

out this cautious limitation, the Act of 1712 could not.
cousisteutly with decisions in England, then not long before
made, have been construed to have such an effect.

In the case of Wueman vs. Cotton, decided in 1663,
Hardres Rep., 325, see Thos. Raymond, 59, 75 and 76,
and also in Bac. Abr., 2d vol., Tit., Gavelkind, B, the ques-
tion was, whether certain lands in Kent, disgavelled by
certain Acts of Parliament in Henry Vlllth's time, " to all
intents, constructions and purposes whatsoever; and that
they should descend as lands at common law, any custom to
the contrary notwithstanding," thereby lost their devisability,
and it was resolved that notwithstanding the generality of the
language, the said lands lost only their partibility, and might
still be devised. The case was made expressly to try the
question on a wager whether the lands could be devised, was
carefully considered, and is also reported in Lev. 79, 1 Sid.
77, 135, and 1 Keble, 288, 372, 492, 505.

The adoption of the common law, then, (if the manor of
Greenwich had not been disgavelled in this way prior to the
cliarters,) could only have changed the descent.

Then, as to the surrender of the lords proprietors to King
George II. Did that destroy the custom of devise, and deprive
our lands of their devisability? We have never seen any
copy of tiie surrenders, but the Act of 2 George II, ch. 34,
A. D., 1729, entitled, an Act for establishing an agreement
with seven of the lords proprietors of Carolina, for the sur-
render of their title and interest in that province, to his
Majesty, is to be found in 1 Stat, p. 60, in which the
agreement is recited and the confirmation enacted. The
patents or charters of Charles II are both recited at length as
to the giant of the lands as already quoted, and the title and
interest of the proprietors thus described was to be surren-
dered ; but "all such tracts of land, tenements, and heredita-
ments as have been at any time before 1 January, 1727,
granted or conveyed by, or comprised in any grants, deeds,
instruments or conveyances, under the common seal of the


Columbia, November and December, 1859.

said lords proprietors, cither in England or in tlio provinces
aforesaid," were expressly excepted, (lb., p. G5,) so that as to
lands irranted before 1 January, 1727, this surrender had no
etiect ; and if the lands after granted by the king were not
devisable, there certainly would have been great confusion,
and we should have to look to the dates of the grants to
resolve the question. Possibly a vague apprehension of this
might have induced the passage of the Act of 1734. ]Jut it
must be observed that tliis surrender made to the king was of
that estate or title which the proprietors held, that is, as of
lands in Kent, and such lands would not have lost their
qualities by such a surrender, 2 Danv. Abr., 441. If gavel-
kind lands are held in socage, and the tenure is after changed
into knight's service, yet the custom is not altered, for that
goes witfj the lajid and not with the tenure. See Lushhigion
vs. Slandorff, 5 Bos. & Pul., 506, 72S. Com. Dig., 4th vol.,
Gavelkind, 533. (A.) So, if it descend to the king, though
it be privileged in the hands of the king, the custom is not
thereby destroyed..... So, if the king be seized of lands
in nature of gavelkind, and dies having several sons, the
whole descends to the king, his successor, and the younger
sons shall have no part, for the custom is suspended in the
hands of the king. Upon these authorities we are justified
in maintaining that although the custom might have been
suspended while the lands were in the king, it was not de-
stroyed ; and that upon being granted to private individuals,
the right of devise went with the land, and that, therefore,
that all lands, whether granted by the proprietors or by the
king, were devisable previous to the A. A. 1734, and up to the
time of the passage of that Act, and if so, then we proceed
to our second proposition.

2. That the Act of 1734, did not take away this right of
the citizen and quality of the land. It is at the worst no
more than the statute of 32 Henry VIII, which has the same
exception, but it has constajjtly been held in England, that
wherever lands were devisable by custom before tlie statute


American Bible Society vs. Noble.

of Henry, they were not affected by it. Gilbert, in consider-
ing what circumstances are necessary to a will, says on
devises, p. 83, 84, that lands of gavelkind tenure in Kent,
" are not subject to the circumstances required by that statute
(32 Henry VHI) because they were devisable before." And
in the Butler & Baker's case, 3 Rep. 35, a, 4, it is said, and
as to the case in Dyer, 155, that if lands in London, or lands
Vi'hich were devisable by custom, are held in capite, yet the
whole may be devised. To that it was answered, that was
not by force of the statute, but because the lands were devis-
able by custom before the statute, and the statute is in the
affirmative, and doth not take away any custom. So T..ord
Coke says again. For an affirmative act doth not take away
a custom to devise lands, as it hath often been adjudged. Co.
Litt., 115, a.

And this has been allowed even against the mortmain
Acts in London. Bac. Abr. (vol. 1, Title, Customs of Lon-
don. A.) By the custom of London, a freeman or citizen
might, even before the statute of wills, devise iiis lands and
tenements, of which he was seized in fee simple, to whom he
pleased, and may at this time devise the same in mortmain,
notwithstanding the statutes of mortmain, &c. Here we have
no mortmain Acts to prevent.

But, whatever might have been the intent or the effect of
the Act of 1734, we contend that the Act of 1789 was in-
tended to remove all restrictions from the power of devising
except those of form imposed by tlie statute of frauds, and
therein re-enacted. This appears from the fact that nothing
is said about the devisees; exceptions ari; made as to those
who may devise, but as to those who may take, the statute is
silent, and as there is nothing to restrict the devisor, the only
question is as to the capacity of the devisee to take at com-
mon law, which capacity we have shewn, corporations have.
And this enactment, although affirmative only, being intended
to regulate wills, the same matter as the Act of 1734, must


Columbia, November and December, 1859.

reppal it, as the exception in tlie Act of 1734 is inconsistont
with the iiniiinited power of devise given in the Act of 1789.

So, if a subsequent Act be contrary to a former, in matter,
it shall be a repeal of the former, though the words are affir-
mative. Com. Dig., 5 vol., foot page 317, Tit., Parliament,
R., 9, a.

Every affirmative statute is a repeal, by implication, of a
precedent affirmative statute, so far as it is contrary thereto.
For, le^es posteriores prioi-es abrogant. Bac. Abr., 4 vol.,
Tit., Statute, D., 14.

Then we have the uniform practice ever since the Act of
1789, in favor of this construction, for there is no vestige of
a doubt of the power to devise to corporations, or of the
ability of corporations to take under a devise, to be found in
any of our reports, and such a doubt has been unknown to
the bar, as I verily believe, until raised in this case, J>ut,
if this be trie first time this Act comes to be construed, being
a statute in favor of public right, it ought to be construed
liberally to carry out its intent, more especially as those feudal
rights which were sought to be protected by the restriction

Online LibrarySouth Carolina. Court of AppealsReports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) → online text (page 16 of 50)