The opinion of the court was delivered by
Me. Justice Pope.
The only questions presented to this court in this cause, are those raised in the grounds of appeal exhibited by five of the defendants, namely, Mrs. Elizabeth H. Brown, Mrs. Agues B. Brown, Mrs. S. A. Chaffin, Mrs. Yinity C. Lipscomb, and M. C. Lipscomb, to so much of the decree rendered by his honor, Judge Hudson, herein, on the 6th day of November, 1891, as is covered by appellants’ exceptions alleging error therein.
The grounds of appeal presented by the defendants, M. C. Lipscomb and Yinity C. Lipscomb, are: 1. That his honor, Judge Hudson, erred in not holding, that when C. B. Hammett endorsed the note of M. C. Lipscomb at the bank (the National Bank of Spartanburg, S. C.), he intended to make an advancement to his daughter, Yinity 0. Lipscomb, and that he never, at any time afterwards, intended that M. C. Lipscomb should [59]*59pay any part thereof, and that no such intention appears in his will: 2. In not holding that such endorsement was an advancement, for which C. B. Hammett intended his daughter to account, and he could not afterwards direct its collection as against M. C. Lipscomb. 3. In holding that the executors should proceed to collect the judgment against M. C. Lipscomb as property on hand first applicable to debts. 4. In not holding that none of the children or sons-in-law of C. B. Hammett should be required to pay any money for the purpose of paying debts, but that they should be paid from tract of land devised to Mrs. Hammett, his widow. 5. In not holding that if any of the children or sous-in-law of C. B. Hammett are required to pay in any money to pay debts, that all, except B. F. Hammett, should contribute in proportion to the amount they had severally received, and in holding that W. T. Hammett was, and is, released from any liability to so account. 6. In not sustaining the exceptions of these appellants to the master’s report. 7. In not holding that the defendant, M. C. Lipscomb, was entitled to homestead.
The grounds of appeal of Mrs. E. H. Brown were as follows: That his honor, Judge Hudson, erred: 1. In not holding that all of the property belonging to C. B. Hammett at the time of his death, including the property devised and willed to his widow, should be exhausted before requiring any of his children or sons-in-law to contribute anything towards the payment of his debts. 2. In not holding that the property and money given to this defendant was an advancement, and that the executors and creditors had no right to call upon her to refund to the estate any of the said advancement. 3. In not holding, at least, that if this defendant refunded any of said property or money received by her, that C. B. Hammett and W. T. Hammett should also account for the money or the lands advanced or loaned to them, and for the notes and mortgages given by them to C. B. Hammett, deceased. 4. In not holding that, at least, this defendant, Elizabeth H. Brown, -should only pay back to the estate her share of the deficiency pro rata among all the children, according to the amount received by them. 5. In not finding that this defendant was entitled to the homestead [60]*60exemption allowed by law. 6. In holding that when C. B. Hammett converted lands and gave money to his children, and took papers for the amounts, he clearly intended (and this intention was further sustained by the evidence in the case) that those evidences of indebtedness should be retained by . himself in lieu of the property with which he parted, so that thereafter he should have it in his power, by will or otherwise, to enforce their collection, if he should desire, and in holding, that when he made his will, this power still remained in him, and that he exercised the same. 7. In holding, in the plan to be pursued by the executors, that if there should remain any debts or expenses unpaid, such deficiency must be raised by collecting pro rata from the evidences of indebtedness in the hands of the executors against the children and sons-in-law of the deceased, the only exceptions being the notes and mortgages of W. T. Hammett and B. F. Hammett; all the others being collectable, including those upon Mrs. Chaffin, Mrs. Agnes Brown, J. L. Hammett, and C. B. Hammett, jr.; and should it develop that the pro rata cannot be collected from any of the papers, such deficiency must be collected from the other good papers pro rata.
The exceptions presented by Mrs. Agnes Brown and Mrs. Chaffin were: 1. That his honor erred in holding that the land advanced to them by their father, and conveyed by him to them by deed, should be subjected to the payment of the debts of the said C. B. Hammett. 2. That his honor erred in not holding that the land devised to Elizabeth Hammett should be exhausted before the land advanced to these defendants. 3. That his honor erred in not sustaining the master’s report, in so far as it relates to these defendants. 4. That his honor erred in not ruling and holding that each of these defendants are entitled to a homestead exemption.
We will now consider the matters involved in these several appeals, but not in the order suggested by appellants.
How should this will be construed? For a proper understanding of this question, it will be necessary to state substantially, without copying, what we understand to be the provisions of the will which the court is called upon to con[61]*61strue:1 1st. The testator authorized his executors to sell so much of his personal and real property, except such as is specifically bequeathed or devised, as may be necessary for the payment of his debts. 2d. By the second clause, he makes a specific devise and a specific bequest to his widow. 3d. He again authorizes and directs his executors to sell all the rest and residue of his estate, both real and personal, after first setting apart to the widow that which is specifically devised and bequeathed to her. 4th. By the fourth clause, he directs his executors to proceed to collect all of his choses in action, “except those upon my children and sons-in-law, as to which provision is hereafter made.” 5th. By the fifth clause, he directs that when all of the property hereinbefore directed to be sold has been converted into money, and the evidences of indebtedness hereinbefore directed to be collected have been collected, and when all of his debts have been paid, then the executors are directed to divide the residue of such assets amongst his children in the manner prescribed, in which he proceeds to designate what each child is to account for, upon such division, so that the shares may be equalized. He then adds these words: “If it be found that any child has overdrawn his or her equal share of my estate, then he or she is to refund the excess to my said executor or executrix.” 6th. This clause contains a provision as to the ■ disposition of the factory stock, which, in the events which have occurred, has become nugatory. 7th. By this clause, the testator directs that, if the estate shall prove insufficient for the payment of his debts, all of it, including the claims against his children and his sons-in-law, must be first exhausted before resorting to any of the property devised and bequeathed to his wife. 8th. In the eighth clause, he declares that the purpose of his will is to devise and bequeath to his wife specifically the property mentioned in the second clause, and then to divide all of the balance of his estate, which may remain after the payment of his debts, equally amongst his children, charging each child as directed in the fifth clause.
[62]*62
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The opinion of the court was delivered by
Me. Justice Pope.
The only questions presented to this court in this cause, are those raised in the grounds of appeal exhibited by five of the defendants, namely, Mrs. Elizabeth H. Brown, Mrs. Agues B. Brown, Mrs. S. A. Chaffin, Mrs. Yinity C. Lipscomb, and M. C. Lipscomb, to so much of the decree rendered by his honor, Judge Hudson, herein, on the 6th day of November, 1891, as is covered by appellants’ exceptions alleging error therein.
The grounds of appeal presented by the defendants, M. C. Lipscomb and Yinity C. Lipscomb, are: 1. That his honor, Judge Hudson, erred in not holding, that when C. B. Hammett endorsed the note of M. C. Lipscomb at the bank (the National Bank of Spartanburg, S. C.), he intended to make an advancement to his daughter, Yinity 0. Lipscomb, and that he never, at any time afterwards, intended that M. C. Lipscomb should [59]*59pay any part thereof, and that no such intention appears in his will: 2. In not holding that such endorsement was an advancement, for which C. B. Hammett intended his daughter to account, and he could not afterwards direct its collection as against M. C. Lipscomb. 3. In holding that the executors should proceed to collect the judgment against M. C. Lipscomb as property on hand first applicable to debts. 4. In not holding that none of the children or sons-in-law of C. B. Hammett should be required to pay any money for the purpose of paying debts, but that they should be paid from tract of land devised to Mrs. Hammett, his widow. 5. In not holding that if any of the children or sous-in-law of C. B. Hammett are required to pay in any money to pay debts, that all, except B. F. Hammett, should contribute in proportion to the amount they had severally received, and in holding that W. T. Hammett was, and is, released from any liability to so account. 6. In not sustaining the exceptions of these appellants to the master’s report. 7. In not holding that the defendant, M. C. Lipscomb, was entitled to homestead.
The grounds of appeal of Mrs. E. H. Brown were as follows: That his honor, Judge Hudson, erred: 1. In not holding that all of the property belonging to C. B. Hammett at the time of his death, including the property devised and willed to his widow, should be exhausted before requiring any of his children or sons-in-law to contribute anything towards the payment of his debts. 2. In not holding that the property and money given to this defendant was an advancement, and that the executors and creditors had no right to call upon her to refund to the estate any of the said advancement. 3. In not holding, at least, that if this defendant refunded any of said property or money received by her, that C. B. Hammett and W. T. Hammett should also account for the money or the lands advanced or loaned to them, and for the notes and mortgages given by them to C. B. Hammett, deceased. 4. In not holding that, at least, this defendant, Elizabeth H. Brown, -should only pay back to the estate her share of the deficiency pro rata among all the children, according to the amount received by them. 5. In not finding that this defendant was entitled to the homestead [60]*60exemption allowed by law. 6. In holding that when C. B. Hammett converted lands and gave money to his children, and took papers for the amounts, he clearly intended (and this intention was further sustained by the evidence in the case) that those evidences of indebtedness should be retained by . himself in lieu of the property with which he parted, so that thereafter he should have it in his power, by will or otherwise, to enforce their collection, if he should desire, and in holding, that when he made his will, this power still remained in him, and that he exercised the same. 7. In holding, in the plan to be pursued by the executors, that if there should remain any debts or expenses unpaid, such deficiency must be raised by collecting pro rata from the evidences of indebtedness in the hands of the executors against the children and sons-in-law of the deceased, the only exceptions being the notes and mortgages of W. T. Hammett and B. F. Hammett; all the others being collectable, including those upon Mrs. Chaffin, Mrs. Agnes Brown, J. L. Hammett, and C. B. Hammett, jr.; and should it develop that the pro rata cannot be collected from any of the papers, such deficiency must be collected from the other good papers pro rata.
The exceptions presented by Mrs. Agnes Brown and Mrs. Chaffin were: 1. That his honor erred in holding that the land advanced to them by their father, and conveyed by him to them by deed, should be subjected to the payment of the debts of the said C. B. Hammett. 2. That his honor erred in not holding that the land devised to Elizabeth Hammett should be exhausted before the land advanced to these defendants. 3. That his honor erred in not sustaining the master’s report, in so far as it relates to these defendants. 4. That his honor erred in not ruling and holding that each of these defendants are entitled to a homestead exemption.
We will now consider the matters involved in these several appeals, but not in the order suggested by appellants.
How should this will be construed? For a proper understanding of this question, it will be necessary to state substantially, without copying, what we understand to be the provisions of the will which the court is called upon to con[61]*61strue:1 1st. The testator authorized his executors to sell so much of his personal and real property, except such as is specifically bequeathed or devised, as may be necessary for the payment of his debts. 2d. By the second clause, he makes a specific devise and a specific bequest to his widow. 3d. He again authorizes and directs his executors to sell all the rest and residue of his estate, both real and personal, after first setting apart to the widow that which is specifically devised and bequeathed to her. 4th. By the fourth clause, he directs his executors to proceed to collect all of his choses in action, “except those upon my children and sons-in-law, as to which provision is hereafter made.” 5th. By the fifth clause, he directs that when all of the property hereinbefore directed to be sold has been converted into money, and the evidences of indebtedness hereinbefore directed to be collected have been collected, and when all of his debts have been paid, then the executors are directed to divide the residue of such assets amongst his children in the manner prescribed, in which he proceeds to designate what each child is to account for, upon such division, so that the shares may be equalized. He then adds these words: “If it be found that any child has overdrawn his or her equal share of my estate, then he or she is to refund the excess to my said executor or executrix.” 6th. This clause contains a provision as to the ■ disposition of the factory stock, which, in the events which have occurred, has become nugatory. 7th. By this clause, the testator directs that, if the estate shall prove insufficient for the payment of his debts, all of it, including the claims against his children and his sons-in-law, must be first exhausted before resorting to any of the property devised and bequeathed to his wife. 8th. In the eighth clause, he declares that the purpose of his will is to devise and bequeath to his wife specifically the property mentioned in the second clause, and then to divide all of the balance of his estate, which may remain after the payment of his debts, equally amongst his children, charging each child as directed in the fifth clause.
[62]*621 It seems to us that, looking solely to the terms of the will, there would be no difficulty in putting a proper construction upon it, for the testator has himself declared in the eighth clause, in very plain terms, what he intended should be the construction put upon it; and, of course, the court will be bound to carry out such intention, unless it comes in conflict with some rule of law. There can be no doubt that the-testator intended that resort should not be had to the property which he gave to his wife for the payment of his debts, until all of the balance of his property of every kind and description had been exhausted, and there is as little doubt that a testator has a right to designate what property shall be first subjected to the payment of his debts, and no one, except a creditor, has a right to object. But it is equally true, that a testator cannot subject property to the payment of his debts, which, though once belonging to him, had been sold or given to a child during his lifetime, and had thus passed beyond his control. So that the practical inquiry here is whether the testator has undertaken to subject any property which during his lifetime had passed beyond his control, either by gift or sale to one or more of his children, to the payment of his debts.
2 It does not seem to us that the doctrine of advancements has any application to this case. While it is conceded that the law of advancements properly applies only in a case of intestacy, yet it is contended that a testator may, by his will, adopt that law as governing the distribution of his estate, and when he does so, it is applied just as in a case of intestacy. This is, no doubt, true (Manning v. Manning, 12 Rich. Eq., 428), but the question here is whether the testator has, by the terms of his will, indicated that the law of advancements shall be applied in the distribution of his estate. The only clause relied upon as affording any such indication is the fifth ; but by the express terms of that clause the provisions therein contained can only apply under a contingency which has never occurred, and cannot now ever occur; and hence, so far as this question is concerned, that clause may be regarded as stricken from the will. The contingency upon which that clause was to apply, was that there should be a residue of the [63]*63estate, after the payment of the debts of the testator, to be distributed amongst the children ; but it being conceded, as we understand it, and, whether conceded or not, it being manifest, that there is not, and cannot, be any residue for distribution, we are unable to discover anything to which the provisions of the fifth clause can be applied. At the utmost, that clause could only be regarded as indicative of an intention on the part of the testator that certain things should be regarded as advancements, while others should not be so regarded; but it must be remembered that such intention was only indicated in a certain contingency, which never has and can never occur.
3 Therefore, even if the question of advancement or no advancement could depend upon the intention, as seems not. to be the case, where there is an intestacy (Rees v. Rees, 11 Rich. Eq., 86), yet it could have no effect here, when such intention has been indicated only in a contingency which never has and never can happen. And, as if to emphasize what was the real intention of the testator, he proceeds in the seventh and eighth clauses to declare, in the most explicit terms, that if it becomes necessary for the payment of his debts to resort to what are termed advancements to his children, such resort must be had, even to the extent of entirely exhausting them, before resort shall be had to any of the property specifically devised and bequeathed to his wife. We do not think that the testator, in using the terms “advanced” and “advancements,” intended to use those words in their technical sense; for while it is true that the general rule is that technical words are to be understood in their technical sense, yet that rule is qualified, and does not apply, when it is apparent that they were used in a different sense. This, it seems to us, is abundantly apparent here; for if he had intended to use those words in their technical sense, why take notes for the money which he let his children have, and, above all, why should he have undertaken to charge these so-called advancements with the payment of his debts in a certain contingency, which has, in fact, arisen — -something that he would, clearly, have had no power to do, if they were really advancements in a technical sense, and which we are bound to presume he must have [64]*64known. The rule is clear, that when the testator uses words which, if given one interpretation, would express an illegal intention, but which, if susceptible of a different interpretation, expressive of a legal intention, the latter interpretation must be adopted rather than the former.
So that, as we have said above, the practical inquiry is whether the testator has undertaken to subject to the payment of his debts any property which, during his lifetime, had passed beyond his possession or control, by either sale or gift to his children. Now it seems to us clear that the evidence of indebtedness which he held against his children or sons-in-law up to the time of his death, whether in the form of notes or accountable receipts, had not passed beyond his control, and, therefore, he had the right to subject the same to the payment of his debts; and in the contingency that has arisen, he has expressed his intention to so subject them. This, as we understand it, is substantially the view taken by the Circuit Judge, and, therefore, we think his judgment should be affirmed,
4 5 As the appellant, M. C. Lipscomb, specially excepts to so much of the decree as makes him first liable for the amount paid by the executors on his note to the bank before resorting to the claims of the testator against his other children and sons-in-law, it may be as well to add, that we think the Circuit Judge has given a good reason for such a distinction. So, too, the exception of this appellant, that the Circuit Judge erred in not including all of the children, except B. F. Hammett, who had reconveyed the land deeded to him to the testator, in the same category, cannot be sustained, for the reason, that such of the claims against the children as had been satisfied by the testator during his lifetime, could not, of course, be regarded as any part of the assets of his estate.
6 As to the claims of homestead, we are agreed that they cannot be now adjudicated, and must be left open, to be determined when the executors undertake to enforce collection from the parties setting up such claims.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed, and the cause is remanded to the [65]*65Circuit Court for such further proceedings as may be necessary to enforce such j udgment of the Circuit Court.
■ In this case a petition for rehearing was filed by S. A. Chaffin, upon which the following order was endorsed, December 20, 1892,
Per Curiam.
7 We have carefully considered this petition, and finding that no material fact or principle of law has been overlooked, there is no ground for a rehearing. It is, therefore, ordered, that the petition be dismissed, and the stay of the remittitur heretofore granted be revoked.
A petition for rehearing was also filed by M. C. Lipscomb and Yinity G. Lipscomb, upon which the following order was endorsed, December 20, 1892,
We have carefully considered this petition, and finding that no material fact or principle of law has either been overlooked or disregarded, there is no ground for a rehearing. It is, therefore, ordered, that the petition be dismissed, and that the stay of the remittitur heretofore granted be revoked.
8 In this case the defendant, M. C. Lipscomb, also presented a petition to one of the Justices of the Supreme Court, in which he alleges that “newly discovered testimony of the highest character, in regard to the imbecility and the total mental incapacity of C. B. Hammett, the testator herein— the said testimony covering the precise date of the execution of the will herein — presents an issue material to a just decision of said cause; and the omission of this fact, of the imbecility of said C. B. Hammett, from the consideration of the Supreme Court, overlooks one of the most material issues of the said case.”
Hpon this petition, counsel moved for and obtained a temporary stay of remittitur. Thereafter, on December 20, 1892, the following order was endorsed on this petition
This petition does not purport to be a petition for a rehearing," but simply for the stay of the remittitur, upon the ground that evidence of an important character has [66]*66been discovered since the hearing below, which will present “an issue material to a just decision of said cause.” If, therefore, the application be regarded as a motion to suspend the appeal, in order to enable the petitioner to move the Circuit Court for a new trial, upon the ground of after discovered evidence, it cannot be entertained, for the reason, amongst others, that no notice of such a motion has been given, and no affidavits, making a prima facie showing, have either been served or presented to this court. Furthermore, it appears that the evidence is designed to raise an issue of devisavit vel non, of which issue neither this court nor the Court of Common Pleas can now take original jurisdiction. It is, therefore, ordered, that the application be refused, and the stay of the remittitur heretofore granted be revoked.