Blount v. Walker
Sarah J. Harris, a citizen of the state of South Carolina, died at her residence in that state in December, 1885, leaving a last will and testament bearing date September 11, 1885, and her surviving, an only child, Mrs. Mary D. Blount, whose domicile was that of her husband, William H. Blount, in Wilson county, in the state of North Carolina. Mrs. Harris' next nearest of kin was her sister, Caroline S. Walker, mother of Julius H. Walker. By her will Mrs. Harris gave, bequeathed, and devised her estate, real and personal, which was all situated in South Carolina, to her nephew, Julius H. Walker, (who was appointed executor,) in trust for Mary D. Blount 'for and during the term of her natural life,' unless the trust were sooner executed, as provided in an item of the will not material to be considered here, and upon the death of Mrs. Blount the estate was 'bequeathed and devised to the issue of the said Mrs. Blount, to them and their heirs forever, per stirpes, and not per capita; and, if the said Mrs. Blount die without issue surviving her at the time of her death, then the same is devised and bequeathed to such person or persons and in such proportions as the said Mrs. Mary Delia Blount may appoint by her last will and testament duly executed, to the said appointees and their heirs forever.' Mrs. Blount died at her home in North Carolina, without issue, in April, 1886. She left a will dated March 16, 1886, providing that 'all my estate, both real and personal, whether legal or equitable, I devise, bequeath, and absolutely give unto my beloved husband, to his only use and behoof, and hereby direct the trustee appointed by the last will and testament of my deceased mother, Mrs. S. J. Harris, of Columbia, in the state of South Carolina, to execute all such needful conveyances and releases as may effectually divest his title as such trustee, and convey the property and effects, to him devised by said last will of Mrs. S. J. Harris, to my said husband, W. H. Blount, to him and his heirs absolutely.' This will was duly admitted to probate in the probate court of Wilson county, N. C., on the 26th day of April, 1886, the order of that court finding from the evidence of the subscribing witnesses that the paper writing propounded 'is the last will and testament of M. Delia Blount, and that the same was duly executed by said M. Delia Blount.' Letters testamentary issued June 3d, and an exemplification of the probate proceedings was duly filed and admitted to probate in the proper probate court in South Carolina, in accordance with the statute in that behalf, which provided: 'If a will be regularly proved in any foreign court, an exemplification of such will may be admitted to probate in this state upon the exemplification and certificate of the judge of the court of probate; and the exemplification shall also be evidence of the devise of land in this state, where the title of lands comes in question.' Gen. St. S.C.. 1882, p. 549, § 1875. William H. Blount instituted an action on the equity side of the court of common pleas in Richland county, South Carolina, against Julius H. Walker, who had qualified as executor and was in possession as trustee, and Mrs. Caroline S. Walker, setting forth the deaths of Mrs. Harris and Mrs. Blount and the wills, and claiming the entire estate of Mrs. Harrs as the appointee by Mrs. Blount's will; alleging demand upon the trustee and executor, and refusal; and demanding judgment that he be adjudged to be the owner of said estate, that Walker be required to account, and for general relief. Walker answered, submitting, under the advice of counsel, the question to the court 'whether the will of M. Delia Blount is a valid execution of the power conferred upon her by the will of Sarah J. Harris, and whether said will of Mrs. Blount has been duly executed so as to pass the property of said Sarah J. Harris in the hands of this defendant.' Mrs. Walker also answered, claiming to be entitled to the whole estate of Mrs. Harris as her sole heir after the death of Mrs. Blount, and alleging that Mrs. Blount's will was not executed as required by the laws of South Carolina, and was not, therefore, a valid execution of the power.
The cause was heard by the judge of the court of common pleas, who found, among other things, 'that Mrs. Blount's will was duly proved in the probate court of North Carolina, in the county in which she resided, and a proper exemplification under the laws of South Carolina was admitted to probate in Richland county on the 19th May, 1886. The court of probate of North Carolina is, under the laws of North Carolina, a court of general jurisdiction in all matters testamentary. The exemplification of the judgment of that court, establishing this will, was properly proved according to the acts of congress. Mrs. Blount's will is not executed according to the laws of South Carolina. The question to be determined is whether Mrs. Blount's will is a valid execution of the power contained in Mrs. Harris' will. It is conceded in the argument, and is undoubtedly sound, that the appointee, under a power like the one under consideration, takes under the instrument creating the power, and not under the instrument of appointment; and in this case Mrs. Harris' will expressly conveys the property to the appointee under the power. The only requisite required by Mrs. Harris' will for the execution of this power is that the same shall be by 'will duly executed;' and in this case that formality has been complied with, and is shown by the judgment of the court of her domicile.' And it was 'ordered, adjudged, and decreed that the power is well executed, and the plaintiff is entitled to the property set out in the complaint, and in the hands of the defendant Julius H. Walker.'
Defendants appealed from this decree to the supreme court of South Carolina, which on the 23d day of April, 1888, reversed the judgment of the circuit court. The court held that the power was not well executed, for the reason that Mrs. Harris had by her will conferred a power which the donee could only exercise 'by her last will and testament duly executed,' which meant a will duly executed according to the laws of South Carolina, which this will was not; and the court said: 'This paper was doubtless a valid will in North Carolina, sufficient to pass any property which Mrs. Blount was entitled to in her own right in that state, and any* personal property which she owned anywhere, and was, therefore, no doubt, properly admitted to probate there, as well as here, upon the exemplification under the statute. But the question here is not whether Mrs. Blount has made a will disposing of her own property, but whether the paper propounded as such is a valid execution of the power conferred by the will of Mrs. Harris; and, for the reasons above stated, we do not think it is.' Blount v. Walker, 28 S.C.. 545, 6 S. E. Rep. 558. The cause was remanded, and subsequent proceedings taken in the court of common pleas, and another judgment rendered by the supreme court upon the question of who was or were entitled to take upon the failure of Mrs. Blount to make a valid appointment; but it is not claimed here that any federal question arose thereon. To the judgment of the supreme court a writ of error was sued out from this court.
S. F. Phillips, for plaintiff in error.
Robert W. Shand, for defendants in error.
FULLER, C. J.