The opinion of the Court was delivered by
Mr. Chiee Justice McIver.
On the day of March, 1883, Samuel Gardner, having first duly made and executed his last will and testament, departed this life, leaving his widow, the defendant, Elizabeth Gardner, and his children, Samuel A. Gardner, one of the plaintiffs herein, B. Frank Gardner, Elizabeth B. Geiger, A. E. Geiger, E. A. Gardner, and Alice Gardner, defendants herein, and another son, William, who has since died, leaving two children, Elizabeth and Tula, who are likewise defendants herein, and his grand-daughter, Elizabeth C. Wolfe, the only child of a predeceased son, John, the other plaintiff herein. The will of the testator was duly admitted to probate, but his executors named therein declined to qualify, and subsequently administration with the will annexed was duly committed to the said S. A. Gardner and B. Frank Gardner. The testator left a small personal estate of inconsiderable value and real estate of the estimated value of $20,000, all of which was disposed of by his will. This will was executed on the 15th of September, 1873, and about six years thereafter, to wit: on the 24th of June, 1879, the testator, the said Samuel Gardner, executed a mortgage, covering all of his real estate, to his wife, the defendant, Elizabeth Gardner, to secure the payment, one year after said date, of the sum of $15,840. Soon after the death of the testator, and within twelve months after the date of that event, an ac[69]*69tion was commenced by the said Elizabeth Gardner for foreclosure of this mortgage, to which action, as we assume, all the heirs and devisees of the said Samuel Gardner were made parties, and there being no defense interposed, judgment of foreclosure was obtained by default, and under that judgment the property covered by the mortgage was bid off by the said Elizabeth Gardner for the sum of $16,000, who took titles, went into possession, sold off some of the property, made mortgages thereon for the purpose, as it seems, of paying off the debts of the said Samuel Gardner, due by him on his own account, the principal of which was a debt to one Pollard, amounting to some $4,500. There was also another claim for a large amount against the estate of Samuel Gardner, as surety on a note under seal, dated as far back as 1859, upon which sundry payments had been made, from time to time, down to the 27th of April, 1865, upon which an action was commenced on the 29th January, 1884, against the administrators and heirs at law of the said Samuel Gardner in the nature of a creditor’s bill. The said estate was, however, relieved from the payment of this claim by the judgment of this Court, rendered 27th of November, 1885, as appears by the case of Gardner v. Gardner, 23 S. C., 588.
On the 17th of February, 1886, after the estate of Samuel Gardner had been relieved from liability for the surety debt above mentioned, the said Elizabeth Gardner duly made and executed her last will and testament, whereby she undertook to dispose of what was left of the real estate, which she bought under her mortgage as above mentioned, as nearly as practicable as her husband had done in his will, and, since the commencement of this action, she has died leaving her will in full force. In her will she leaves a legacy of $500 to her grand-daughter, Elizabeth Wolfe, one of the plaintiffs herein, reciting that a legacy of the same amount had been left to her by the will of her husband, which had never been paid, and then, after making a special provision for her daxighter, Alice, she divides the balance [70]*70of her estate equally amonst her children named, of whom the plaintiff, Samuel A. Gardner, is one. Afterwards, to wit: on the 15th of December, 1888, the said Blizabeth made a voluntary deed to her son, B. Frank Gardner, of all her remaining real estate (a portion of it having been previously conveyed to her daughter, Alice,) upon the following trusts: 1st, to apply the income arising from the rents and profits of said property to pay two specified mortgage debts, together with the taxes and insurance; 2d, to pay the balance to her, the said Blizabeth Gardner, for and during the term of her natural life; 3d, at her death to divide the property and whatever income may be on hand equally amongst the following named of her children, viz: A. B. Geiger, B. A. Geiger, and B. F. Gardner; and her grand-children, Bliza-beth and Bula Gardner, who together are to take one share.
The foregoing facts are, as we understand it, undisputed, and we, therefore, proceed to the consideration of such other facts, material to the issue, as to which there is dispute. It is contended on behalf of the plaintiffs that after Samuel Gardner had made his will, providing for his wife and all .of his children, and bequeathing a legacy of $500 to his grand-daughter, Blizabeth Wolfe, one of the plaintiffs herein, he learned that he was threatened with a large debt of surety for one Geiger, and casting about for the means of protecting himself and his estate from the payment of this debt of another, he bethought himself of the fact'that he had, anterior to the war, received a considerable amount of personal property, to which his wife was entitled, under the will of her father, and conceiving that he was, at least, morally bound, as the testimony shows that he said, to make good to his wife the value of this property which he had received and appropriated to his own use; and, accordingly, he determined to execute, and did execute, the mortgage to his wife, above spoken of; that shortly after his dea,th there was a meeting of all or most of the family at the late residence of the said Samuel Gardner, when his will was read, and the said mortgage was produced, of [71]*71■which, up to that time, some, if not all, of the children had never heard; that objection being made to the mortgage upon the ground that the debt which it purported to secure 'was without any legal or valid consideration, after some discussion, it was agreed that all opposition to the mortgage should be withdrawn, and that the said Elizabeth Gardner should be allowed to foreclose the mortgage, buy the property, take titles in her own name, and after paying off the debts of said Samuel Gardner, she should be entitled to the use and enjoyment of the property during her life, and after her death that the property should be diposed of as provided in the will of said Samuel Gardner, and to that end the said Elizabeth Gardner should make her will, and that accordingly she did execute her will, under which the plaintiffs claim the property should now be disposed of. The plaintiffs further contend that the deed of trust above spoken of was obtained by fraud, or, at least, was executed by the said Elizabeth Gardner under the mistaken belief that she was simply placing the property in the hands of B. Frank Gardner, to be managed by him,- instead of by Samuel A. Gardner, as it had theretofore been, and that she had no idea that, by executing said deed, she was depriving the plaintiffs of all right to share in the property, and if she had known that such was the effect of the deed, she never would have executed it. These contentions on the part of the plaintiffs are stoutly contested by the defendants, and there is no doubt that the testimony was conflicting. The referee to whom it was referred to hear and determine all the issues in the above cause made his report, in which he finds, as matter of fact, that there was no such family agreement or settlement as that contended for by the plaintiffs; and that there was no fraud or deception practised upon the said Elizabeth Gardner in obtaining the trust deed, as alleged by plaintiffs.
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The opinion of the Court was delivered by
Mr. Chiee Justice McIver.
On the day of March, 1883, Samuel Gardner, having first duly made and executed his last will and testament, departed this life, leaving his widow, the defendant, Elizabeth Gardner, and his children, Samuel A. Gardner, one of the plaintiffs herein, B. Frank Gardner, Elizabeth B. Geiger, A. E. Geiger, E. A. Gardner, and Alice Gardner, defendants herein, and another son, William, who has since died, leaving two children, Elizabeth and Tula, who are likewise defendants herein, and his grand-daughter, Elizabeth C. Wolfe, the only child of a predeceased son, John, the other plaintiff herein. The will of the testator was duly admitted to probate, but his executors named therein declined to qualify, and subsequently administration with the will annexed was duly committed to the said S. A. Gardner and B. Frank Gardner. The testator left a small personal estate of inconsiderable value and real estate of the estimated value of $20,000, all of which was disposed of by his will. This will was executed on the 15th of September, 1873, and about six years thereafter, to wit: on the 24th of June, 1879, the testator, the said Samuel Gardner, executed a mortgage, covering all of his real estate, to his wife, the defendant, Elizabeth Gardner, to secure the payment, one year after said date, of the sum of $15,840. Soon after the death of the testator, and within twelve months after the date of that event, an ac[69]*69tion was commenced by the said Elizabeth Gardner for foreclosure of this mortgage, to which action, as we assume, all the heirs and devisees of the said Samuel Gardner were made parties, and there being no defense interposed, judgment of foreclosure was obtained by default, and under that judgment the property covered by the mortgage was bid off by the said Elizabeth Gardner for the sum of $16,000, who took titles, went into possession, sold off some of the property, made mortgages thereon for the purpose, as it seems, of paying off the debts of the said Samuel Gardner, due by him on his own account, the principal of which was a debt to one Pollard, amounting to some $4,500. There was also another claim for a large amount against the estate of Samuel Gardner, as surety on a note under seal, dated as far back as 1859, upon which sundry payments had been made, from time to time, down to the 27th of April, 1865, upon which an action was commenced on the 29th January, 1884, against the administrators and heirs at law of the said Samuel Gardner in the nature of a creditor’s bill. The said estate was, however, relieved from the payment of this claim by the judgment of this Court, rendered 27th of November, 1885, as appears by the case of Gardner v. Gardner, 23 S. C., 588.
On the 17th of February, 1886, after the estate of Samuel Gardner had been relieved from liability for the surety debt above mentioned, the said Elizabeth Gardner duly made and executed her last will and testament, whereby she undertook to dispose of what was left of the real estate, which she bought under her mortgage as above mentioned, as nearly as practicable as her husband had done in his will, and, since the commencement of this action, she has died leaving her will in full force. In her will she leaves a legacy of $500 to her grand-daughter, Elizabeth Wolfe, one of the plaintiffs herein, reciting that a legacy of the same amount had been left to her by the will of her husband, which had never been paid, and then, after making a special provision for her daxighter, Alice, she divides the balance [70]*70of her estate equally amonst her children named, of whom the plaintiff, Samuel A. Gardner, is one. Afterwards, to wit: on the 15th of December, 1888, the said Blizabeth made a voluntary deed to her son, B. Frank Gardner, of all her remaining real estate (a portion of it having been previously conveyed to her daughter, Alice,) upon the following trusts: 1st, to apply the income arising from the rents and profits of said property to pay two specified mortgage debts, together with the taxes and insurance; 2d, to pay the balance to her, the said Blizabeth Gardner, for and during the term of her natural life; 3d, at her death to divide the property and whatever income may be on hand equally amongst the following named of her children, viz: A. B. Geiger, B. A. Geiger, and B. F. Gardner; and her grand-children, Bliza-beth and Bula Gardner, who together are to take one share.
The foregoing facts are, as we understand it, undisputed, and we, therefore, proceed to the consideration of such other facts, material to the issue, as to which there is dispute. It is contended on behalf of the plaintiffs that after Samuel Gardner had made his will, providing for his wife and all .of his children, and bequeathing a legacy of $500 to his grand-daughter, Blizabeth Wolfe, one of the plaintiffs herein, he learned that he was threatened with a large debt of surety for one Geiger, and casting about for the means of protecting himself and his estate from the payment of this debt of another, he bethought himself of the fact'that he had, anterior to the war, received a considerable amount of personal property, to which his wife was entitled, under the will of her father, and conceiving that he was, at least, morally bound, as the testimony shows that he said, to make good to his wife the value of this property which he had received and appropriated to his own use; and, accordingly, he determined to execute, and did execute, the mortgage to his wife, above spoken of; that shortly after his dea,th there was a meeting of all or most of the family at the late residence of the said Samuel Gardner, when his will was read, and the said mortgage was produced, of [71]*71■which, up to that time, some, if not all, of the children had never heard; that objection being made to the mortgage upon the ground that the debt which it purported to secure 'was without any legal or valid consideration, after some discussion, it was agreed that all opposition to the mortgage should be withdrawn, and that the said Elizabeth Gardner should be allowed to foreclose the mortgage, buy the property, take titles in her own name, and after paying off the debts of said Samuel Gardner, she should be entitled to the use and enjoyment of the property during her life, and after her death that the property should be diposed of as provided in the will of said Samuel Gardner, and to that end the said Elizabeth Gardner should make her will, and that accordingly she did execute her will, under which the plaintiffs claim the property should now be disposed of. The plaintiffs further contend that the deed of trust above spoken of was obtained by fraud, or, at least, was executed by the said Elizabeth Gardner under the mistaken belief that she was simply placing the property in the hands of B. Frank Gardner, to be managed by him,- instead of by Samuel A. Gardner, as it had theretofore been, and that she had no idea that, by executing said deed, she was depriving the plaintiffs of all right to share in the property, and if she had known that such was the effect of the deed, she never would have executed it. These contentions on the part of the plaintiffs are stoutly contested by the defendants, and there is no doubt that the testimony was conflicting. The referee to whom it was referred to hear and determine all the issues in the above cause made his report, in which he finds, as matter of fact, that there was no such family agreement or settlement as that contended for by the plaintiffs; and that there was no fraud or deception practised upon the said Elizabeth Gardner in obtaining the trust deed, as alleged by plaintiffs. And he, therefore, finds, as matter of law, that the complaint should be dismissed.
To this report plaintiffs excepted, and the case was heard upon the report and exceptions by his Honor, Judge With-[72]*72erspoon, who, in a short order, confirmed the report and rendered judgment that the complaint be dismissed.
From this judgment the plaintiffs appeal, upon the several grounds set out in the record, which, under the view we take, need not be stated here. Inasmuch as the Circuit Judge simply confirmed the report of the referee, without any discussion of the questions in the case, we are compelled to devote our attention to the views presented by the referee in his report, which, as we assume, were adopted by the Circuit Judge. The report should, therefore, be incorporated in the report of this case.
1 It is very manifest that the controlling question in the case is, whether the evidence was sufficient to establish such a family agreement as that contended for by the plaintiff; for, if such agreement is established, it is conceded, and properly conceded, by the counsel for respondents, that the plaintiffs are entitled to the relief demanded in their complaint. There can be no doubt that, shortly after the death of Samuel Gardner, a family council was held. The testimony is most abundant to that effect, and the referee so finds, for he says: “There can be no doubt that, shortly after the death of Samuel Gardner, all of his family, or most of them, at least, met in Mrs. Gardner’s parlor in Columbia, whether for the simple purpose of hearing his will read, or, as the witness, Mr. Crawford, says, ‘for the purpose of settling the estate of Samuel Gardner, and the further purpose of foreclosing this mortgage,’ is immaterial.” It may not be amiss here to note that the referee is mistaken in giving the language quoted from Mr. Crawford’s testimony, as his statement of the purpose of the family meeting. That language was used by Mr. Crawford, as the “Case” shows, in answer to an inquiry as to the appointment of the administrators with the will annexed, where he says: “That appointment was obtained for the purpose of settling the estate of Mr. Samuel Gardner, and for the further purpose of foreclosing this mortgage.” What Mr. Crawford did really say as to the purpose of the meeting was this: “We assem[73]*73bled there — that is, I and Mrs. Gardner assembled there— for the purpose of making an arrangement whereby this mortgage should be foreclosed upon the property described in the complaint, without opposition on the part of the family.” There can be no doubt, also, that at this family meeting there was considerable opposition, on the part of some of the members of the family, to the foreclosure of the mortgage, based upon the ground that it was given to delay and defraud creditors; and there certainly is no doubt that all such opposition was withdrawn, and that the judgment of foreclosure was obtained by default. The natural inference from this is that there must have been some arrangement effected, satisfactory to the family, and .what more natural than that which it is claimed by the plaintiffs was entered into. While it is true that there is a conflict of testimony as to this matter, it seems to us that it is much more reasonable to adopt the version of Mr. Crawford, as to what occurred at that meeting, than that of any other witness, for several reasons. In the first place, he was wholly disinterested, while the other witnesses were not. In the next place, he is an intelligent and experienced lawyer, who at the time seems to have been the trusted legal adviser of all the parties; and finally, his high character is unquestioned, and we may add unquestionable. He went to that meeting, as he says, for the purpose of making an arrangement whereby the mortgage should be foreclosed without opposition from the family, and it is quite certain that such purpose was effected. Who, then, was more likely to know and understand how that arrangement was effected, and who more certain to testify truthfully and intelligently as to what occurred? Then, too, the subsequent conduct of the parties reflects light upon, and confirms the view that there was a family arrangement; for in pursuance of that arrangement, Mrs. Elizabeth Gardner did make her will, providing for all of her children and giving a legacy to her granddaughter, the plaintiff, Elizabeth Wolfe, saying that a similar legacy of $500 had been given to her by the will of the [74]*74said Samuel Gardner, which had not been paid. More than that, it is quite certain that Elizabeth Gardner proceeded to pay up the debts of her husband, just as it was claimed was provided for in the family arrangement, for which she would have been in no way liable, if the mortgage to her was a good and valid security. The referee seemed to think that, even if the testimony was sufficient to establish the fact that there was a family arrangement, that the testimony left it uncertain what were the terms of such arrangement, inasmuch as the witnesses for the plaintiffs differed as to that matter, and proceeds to comment upon what he regards as the conflicting statements of the plaintiff, Samuel A. Gardner, and Mr. Crawford. This difference, as it strikes us, is more a matter of form than substance. Besides, adopting, as we do, the version of Mr. Crawford, we find no such difficulty, as we think that the terms of the will of Elizabeth Gardner carried out, substantially, the terms of the family arrangement. Again, when the referee says that he does not understand Mr. Crawford as testifying “that any binding contract was made, but that an understanding was reached,” and draws the inference that Mr. Crawford “considered the alleged contract only an understanding, a family expectation, not binding or obligatory,” we think he totally misunderstands the testimony. Mr. Crawford certainly did not go to that family meeting with the idle purpose of obtaining a mere “family expectation, not binding or obligatory;” but, as he says explicitly, his purpose was to make an arrangement for the foreclosure of the mortgage, without opposition on the part of the family, and that purpose undoubtedly was effected. All opposition was withdrawn, in consideration, as Mr. Crawford testifies, that by the family arrangment, the children would be provided for. Call it what you will— an “understanding,” or an “arrangement,” or a “contract,” the testimony undoubtedly shows that there was opposition to the mortgage on the part of some, at least, of the family; that such opposition was withdrawn; and that such opposition was withdrawn in consequence of what occurred at the [75]*75family meeting. Again, when the referee says that he finds it difficult to understand how Mr. Crawford would permit his client, Mrs. Gardner, to enter into such an arrangement as that contended for, as he certainly considered her mortgage a valid lien on the property of her deceased husband, he again betrays an entire misconception of the real situation. We cannot for a moment suppose that so good a lawyer as Mr. Crawford would regard the mortgage valid as against the claim of creditors, for there certainly was no valid legal consideration for the so-called debt which the mortgage purported to secure. When Samuel Gardner received his wife’s share of her father’s estate, it being personal property, before the adoption of the Constitution of 1868, under the law as it then stood, his marital rights attached so soon as the property was reduced to possession, and became as absolutely his property as any other property which he owned. While, therefore, there might have been a moral obligation on the part of Samuel Gardner to return this property or its value to his wife, there certainly was no legal obligation to do so, and hence it could not constitute the foundation of, or the consideration for, any debt. The referee seems to recognize this view, but says that the husband could make a gift to his wife. In the first place, the giving of a mortgage to secure the payment of a so-called debt is a very unusual way of making a gift. But what is more important, Samuel Gardner being largely indebted at the time, could not make a valid gift to his wife, or any one else, any more than he could make a mortgage to secure the payment of a debt which rested on no legal consideration. Whatever doubts may have been entertained as to the right of the heirs or devisees of Samuel Gardner— mere volunteers — to resist the foreclosure of a mortgage, we cannot for a moment suppose that any one acquainted, in the least degree, with the settléd principles of law, would have doubted the right of creditors to do so. But we can well understand how it might have been regarded as a matter of importance to secure the withdrawal of opposition to [76]*76the action for foreclosure from the members of the family; for it is conceded that such action was commenced within twelve months after the death of the testator, and if opposition from the heirs, who were necessary parties, should be withdrawn, judgment of foreclosure could be more speedily obtained and the property sold — perhaps before creditors could put their claims in judgment, as they were forbidden by law to commence their actions before the expiration of the twelve months. Besides, what real injury could come to Blizabeth Gardner? for, by the terms of the family arrangement, she was to enjoy the use of the property during her life, and at her death it would go to those whom she most probably would wish to provide for. After a very careful examination of all the testimony in this case, we cannot resist the conclusion that the family of Samuel Gardner, soon after his death, finding his estate considerably indebted on his own account, and also threatened with a large surety debt, amounting to something like $4,000, the payment of which they desired to avoid, met for the purpose of making some arrangement for the settlement of the estate in such a way as would protect it from the payment of such surety debt, and that it was then agreed that the best mode of effecting such purpose was to allow the mortgage to Elizabeth Gardner, which had been questioned, and certainly was questionable, to be promptly foreclosed, the property sold, and bought in by Blizabeth Gardner, under her mortgage, and the property applied first to the payment of such debts of Samuel Gardner as were contracted on his own account, which they were willing should be paid, next to the use of said Blizabeth Gardner for and during her life, with an agreement on her part to dispose of the same at her death just as she has done by her will. It must be concluded, therefore, that the Circuit Judge erred in holding otherwise, and upon this ground the decree should be reversed.
Under this view, it becomes unnecessary to consider the other question — whether there was any fraud or deception practiced upon Blizabeth Gardner in obtaining the trust [77]*77deed above mentioned. We may say, however, that we do not think the testimony warrants the conclusion that there was any such fraud and deception, though it does tend to show that she executed the trust deed under the mistaken idea that its purpose was simply to transfer the management of the property from Samuel A. Gardner to B. Frank Gardner, and not with any idea that its effect would be to deprive the plaintiffs of any interest in the property after her death.
2 If any other conclusion could be reached, it seems to us that there would still remain another question upon which neither the referee nor the Circuit Judge has directly passed, and that is the question as to the rights of the plaintiff, Elizabeth Wolfe. Even if it could be concluded that the testimony was insufficient to establish any such family arrangement as that contended for, yet there was error in dismissing the complaint as to Mrs. Wolfe, as it should be sustained upon another ground. The undisputed testimony is, that Mrs. Wolfe was induced to withdraw her opposition to the action for foreclosure of the mortgage to Elizabeth Gardner, by the assurance from her, through her attorney, given to the attorney of Elizabeth Wolfe, that if she would withdraw her opposition to the action for foreclosure, she, Elizabeth Gardner, would either pay at an early day the legacy of $500 to Elizabeth Wolfe, or provide for it in her will, and as the result of such assu-. ranee, her opposition was withdrawn. Mr. Crawford, in his testimony, in speaking of this matter, says: “In his last will and testament Mr. Gardner had left her $500, and I was authorized by Mrs. Elizabeth Gardner to treat with Gen. James E. Izlar, the attorney of Mrs. Wolfe, for the purpose of having him agree to the foreclosure proceedings; the condition being that Mrs. Gardner should either pay at an early day, or leave it in her last will and testament, that the $500 should be turned over to Mrs. Wolfe, her grand-daughter. I saw Gen. Izlar, and made the arrangement with him.” Of this testimony no contradiction whatsoever can be found in the testimony, which is fully set out [78]*78in the “Case.” It must, therefore, be taken as a fact that Mrs. Elizabeth Gardner made a valid agreement, founded on a sufficient consideration, to pay this legacy to Mrs. Wolfe, or to provide for it in her will. There is no pretense that the legacy was ever paid, and, therefore, under the principles laid down in the recent case of Fogle v. St. Michael's Church, 48 S. C., 86, it must be provided for, before the property can pass under the voluntary trust deed.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for such further proceedings as may be -necessary to carry out the views herein announced.