[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 373 February 17, 1923. The opinion of the Court was delivered by This appeal involves the construction of a will. The following statement appears in the record: "This was an action commenced by the plaintiff in the Court of Common Pleas for Sumter County for the purpose of having dower set off and allotted to her in various tracts or parcels of land which were in the possession of her husband, James C. Spann, during his lifetime, in some of which he owned the fee simple absolute, and in some the estate or interest which he owned as a matter of dispute. Dower was allotted to her in certain of the tracts, and the right to dower was contested by the defendants in other *Page 379 tracts. The case was heard before his Honor S.W.G. Shipp on an agreed statement of facts, and a decree was made by Judge Shipp on March 30, 1922, finding that the plaintiff was entitled to dower in the remaining lands. From this decree an appeal was taken by the defendants; notice of intention to appeal having been duly given and exceptions served.
"The issues in the case arise under the construction of the will of Lawrence M. Spann, bearing date August 31, 1874, the conveyances, by Annie E. Strohecker and Lawrence S. Carson to James C. Spann, and the will of James C. Spann."
The facts are more fully stated in the decree of his Honor the Circuit Judge, which will be reported.
The first, sixth, sixteenth, and seventeenth clauses of Lawrence M. Spann's will are as follows:
"First. I give to my son James, the plantation where I now live including the Murray tract, the Graham tract and the few acres of land adjoining which I bought from Frierson, and also the two small places at Providence that I bought from Mr. J.K. Pollard, containing about ninety or one hundred acres; also one-fourth of my mill tract near Levi Burkett's."
"Sixth. The balance of my estate, real and personal, I give one-fifth to my son James, one-fifth to my daughter Bettie, one-fifth to my daughter Harriet, one-fifth to my daughter Ella and the other fifth to my two grandchildren Lawrence and Anna Carson."
"Sixteenth. All the estate, real and personal, given or intended to be given hereafter by this will I wish held in trust by my friend William J. Reynolds so that the portions or shares allotted to my son James shall not be subject to his disposal or liable for his debts, and the portions or shares allotted to my daughters shall not be subject to their disposal or liable for their own debts or the debts of their present or any future husbands." *Page 380
"Seventeenth. Should any of my children die and not have a child or children, who shall marry or attain the age of twenty-one years, all the estate, real and personal, given them by this will I wish equally divided between my surviving children and my two grandchildren Lawrence and Anna Carson, who shall only be entitled to one child's portion."
In the decree of his Honor the presiding Judge, he says:
"In regard to the trust feature of the will of Lawrence M. Spann, as set forth in the sixteenth clause thereof, it is clear that the trustee was imposed with the sole duties of holding the legal title to the property passing under said will to James C. Spann, in order that the said beneficiary could not convey his interest in the said estate, and so that his creditors could not subject his interest to the payment of his debts."
This is a correct construction of that clause. James C. Spann was entitled to the sole possession of the property, out of which dower is claimed, and to the rents and profits. No other person had any beneficial interest therein, and no duty was imposed upon the trustee except to hold the legal title, so that the property in question should not be subject to the disposal of James C. Spann, nor liable for his debts. This was not sufficient to create a valid trust and to place the legal title in the trustee, as there was no duty for him to perform. This conclusion is fully sustained by the case of Howe v. Gregg, 52 S.C. 88; 29 S.E., 394.
For these reasons and those stated by his Honor the Circuit Judge, the decree of the Circuit Court is affirmed.
MESSRS. JUSTICES WATTS and COTHRAN concur.
MR. JUSTICE MARION concurs for reasons stated in concurring opinion of MR. JUSTICE COTHRAN.
MR. JUSTICE FRASER did not sit.