Bank of Charleston v. Dowling

1. Prato. — The transactions by which the judgment debtor in this case managed to divest himself of his property, held to be a fraud upon his creditors. 2. Laches — Pleading.—In an action to set aside a deed or other paper for fraud, the plaintiff, to avoid the plea of laches, should allege that he had only obtained notice of the fraud within the statutory period, but the onus of proving notice is on defendant. 3. Wiles — Limitation oe Estates — Trustee.—A will devising lands to a trustee, and authorizing him to sell it without accounting, or to dispose of it by will, or otherwise, vests an absolute estate in the trustee.

Before Townsend, J., Barnwell, September, 1897. Creditor’s bill by the Bank of Charleston National Banking Association v. J. C. Dowling, C. F. Dowling, and F. H. Dowling, in his own right, and as executor of Virginia S. Dowling, Henry Spann Dowling, Decania Dowling, and Dina E. Dowding. The Circuit decree is as follows, omitting the formal parts and the statement of the testimony and discussions thereof: I do not hesitate to say that the evidence satisfies me that all these transactions were entered into by these parties for the purpose of protecting the property of E. H. Dowling from his creditors, and of defeating and defrauding his creditors of their just debts. I have thought it best to refer, briefly, to certain other points alluded to in argument at the hearing, in order tbat the parties may have the benefit of my views respecting them, before the passage to the will. The testimony is, that the sheriff of the county of Barn-well set off a homestead in the lands in question to E. H. Dowling before the sale at which the Bank of Charleston claims to have purchased. After the assignment of homestead, the plaintiff excepted thereto. E. H. Dowling, at the sale by the sheriff, gave notice to the effect that persons purchasing at said sale would not obtain a good title to the premises sold, for the reasons set forth in said notice, and disclaimed his right to homestead in said premises. There is no doubt that the said B..H. Dowling must be held to the admissions contained in said notice — at least, so far as the same affect the issues involved in this case. If they conflict with other statements of his in regard to title and possession, they must be considered in accepting his testimony, in passing upon these questions. But, in the view I take of the case, I am of the opinion that B. H. Dowling was entitled to a homestead in said premises at the time the same was attempted to be set off. It appears, however, that the homestead here was not perfected. Such being the case, proper proceedings should be had to assign to E. H. Dowling such homestead as he may be ehtitled to under the laws respecting homestead at the time the debts of the plaintiff were contracted. If the surrender of possession of the premises was, as contended by plaintiff, to E. H. Dow-ling, he thereupon occupied the position of mortgagee in possession and owner of said premises; subject, however, to the interest of Mrs. Barr under the bond and mortgage of J. C. Dowling and C. T. Dowling, assigned to her as collateral security to the debt of B. H. Dowling to her, herein-before referred to; and upon the payment of the debt of Mrs. Barr, he became entitled to the securities held by her, and had a title to said premises, freed from the incumbrance of the Barr debt. Now, there can be no question that the Barr debt was paid; she so testifies, and the fact has been clearly demonstrated from what has been said in the previous part of this decree. I am satisfied, however, with the conclusions heretofore reached by me, namely, that the surrender of the premises was to B. H. Dowling. This being so, he at once became the mortgagee in possession, as before stated, and the said premises became subject to the lien of the judgments obtained against, and liable to levy and sale thereunder, and the purchaser at such sale would take a good title to the premises sold. But, even if these various transfers had vested the absolute title to the premises in question in fee in Virginia Spann Dowling, and the same remained in her up to the time of her death, then, under the interpretation which I give to her last will and testament, I am of opinion that an absolute estate in said property passed to her husband, E. H. Dowling. Under the will, E. H. Dowling has absolute power to control and dispose of the property therein mentioned as he may deem fit and proper. And I hold, when the power to dispose of the estate devised is given absolutely by will, as in this case, the power overrides the trust attempted to be created, and gives the trustee the whole estate — an estate subject to and liable to be sold for his debts. No broader terms could be used to create an absolute estate than those used in the will of Virginia Spann Dowling. The will is as follows: “The State of South Carolina. In the name of God, amen. I, Virginia Spann Dowling, of the county of Barnwell, wife of Elijah H. Dowling, of the said county, being of sound mind, memory, and understanding, gratefully acknowledging God therein, but considering the certainty of death appointed unto all, and the uncertainty of the time thereof, do make, publish, and declare this present writing ás and for my last will and testament, in the manner following: That is to say, that, in the first place, I desire Christian burial of my body, under the direction of my executor hereinafter named; and I direct that all my just debts, funeral and testamentary expenses, be fully paid and satisfied by my said executor with all convenient speed after my decease; then I give, devise, and bequeath all the real estate whereof I am or shall be seized, interested in or entitled to, or whereof I have or may have power to dispose, and also all and singular my personal estate, goods, chattels, moneys due, and effects, whatsoever and wheresoever, whereof, wherein or whereto I am or shall or may be or become interested in, or entitled unto, and every, part and parcel thereof, respectively, and all my estate and interest thereto, with the appurtenances, unto the said Elijah H. Dowling and his successor or successors, by his last will and testament to be nominated and appointed, to and upon the trust that the whole and every parcel and portion thereof shall be, during the lifetime and capacity of the said Elijah H. Dowling, managed, controlled, exchanged, sold or otherwise disposed of at and by the discretion of the said Elijah .H. Dowling, and without accountability therefor, and in accordance with any testamentary directions of the said Elijah H. Dowling, to the use, benefit, and behoof of my children, Henry Spann Dowling, Decania Dowling, and Dina E. Dowling, and such other child or children as shall be born of me unto the said Elijah H. Dowling, me surviving, during their minority, respectively, and to be equally distributed unto and among them, share and share alike, to them and their heirs; and it is directed that partition and allotment shall be in all respects subject to the discretion of tny executor hereinafter named, and during his lifetime and capacity may be by him made; but thereafter, when the oldest of the said children surviving shall attain the age of twenty-one years, the same shall be made and effected by three or more family friends, to be by the said successor or successors selected, and his or their hand or hands, seal or seals, to that end and purpose duly appointed and authorized. And I do hereby nominate, constitute, and appoint my husband, the said Elijah H. Dowling, executor of this my will. In witness whereof, I, the said Virginia Spann Dowling, have hereunto set my hand and seal, this 24th day of February, in the year of our Ford 1886. Virginia Spann Dowling. [Seal.]” The mere reading of the will must satisfy any one that Elijah H. Dowling is given, by the power contained in this will of his wife, an absolute control over all the property therein mentioned, and in which a trust is attempted to be created. Such being the case, the absolute power overrides the trust and gives him the whole estate. The conclusion reached by me is fully sustained by the following authorities: “The equitable title merges in the legal when they are united in one person.” Healey v. Alslon, 25 Miss., 190; 3 Jarman on Wills, 71. “If no precise period for the termination can be shown, it remains an estate in fee.” 3 Jar-man on Wills, 71. Said Haskell, J., in the case of Blume v. Evans: “The Court inclines to a construction which favors the early vesting of estates, and against a construction which divests an estate already vested.” Blume v. Evans, 10 S. C., 82. “Wherever, therefore, the objects of the supposed recommendatory trust are not certain or definite; wherever the property, to which it is to attach, is not certain or definite; wherever a clear discretion and choice to act, or not to act, is given; wherever the prior disposition of the property imports absolute and uncontrolable ownership; in all such cases, courts of equity will not create a trust from words of this character.” II. Story Eq., 331. “Whenever any person gives property and points out the object, the property, and the wa}' it should go, that does create a trust, unless he shows clearly that his desire expressed is to be controlled by the party, and that he shall have an option to defeat it.” II. Story Eq., 329. “We may lay it down as an incontrovertible rule, that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is where the testator gives the first taker an estate for life only, by certain and expresss words, and annexes to it a power of disposal.” I. Sugden on Powers, p. 183. “A valid executory devise cannot subsist under an absolute power of disposition in the first taker.” Jones v. Bacon, 28 Am. Rep., 2, 3. “The power of alienation belongs to a fee; in fact, it is the very essence of a fee. Is the condition which the latter portion of the clause attempts to attach to the devise inconsistent with and repugnant to this devise? The performance of the condition would require Moore to die in possession of the real estate devised to him. In no other way could he leave a will disposing of it. The condition, then, is a direct- and positive restriction upon the powers of alienation. The will invests him with a fee, but the condition strikes at the very substance of this fee, and if valid, would take and destroy its most important and essential quality— the power of sale.” Moorev. Sanders, 15S.C.,442. “Where,” says Sir Edward Sugden, “the intention is clear, a power may enable the donee to dispose of the fee, though no words of inheritance be used, as where a testator, gives a power to sell the lands, the donee may sell the inheritance, because the testator gives the same power he had himself.” Quoted in Heimh<mser v. Decker, 38 N. J., 430; 18 Am. & Eng. Euc. of Law, 904. “After directing a sale of certain property, the will adds: I wish the proceeds of my real and personal estate, and .the debts due me, after paying my debts, to be put at interest by my executors, and my wife to receive the interest; but, so long as she remains my widow, she is to be at liberty to receive from my executors or from my estate such part of it as she may choose, and to appropriate it as she believes to be just and right.” Held: “All the estate to be directed to be sold and invested by his executors, passed absolutely to his wife.” The language imports absolute dominion, and absolute dominion is one of the best descriptions of absolute property. Miss. So. of M. E. Chtirch v. Calvert's Adm., 32 Gratt. “An unlimited power of disposition given by will, carries the absolute interest in the property.” Smith v. Bell, Tenn. Ch. Rep., Cooper’s ed., 302. Lord Langsdale has thus defined the degree of certainty required to create a valid trust: “Any words by which it is expressed or from which it may be implied that the first taker may apply any part of the subject to his own use, are held to prevent the subject from being certain. And in another case, it is said that to create a trust by means of an obligation imposed upon the conscience of the devisee, the words must be imperative, the subject must be certain, and the object as certain as the subject.” II. Redfield on Wills, p. 409. “Where there is a choice, it must be in the power of the devisee to dispose of it either way. The words did not clearly demonstrate an object, and it was held not to be a trust.” II. Sugden on Powers, p. 157. “It appears, then, that the trust and the power are inconsistent, antagonistic; they cannot, therefore, coexist; the power as the dominant creation must overrule the trust.” Bratton v. Massey, 15 S. C., 277. So that, in any view that may be taken of the case, I am clearly of the opinion that the property in question was, and is, subject to the debts and liabilities of E. H. Dowling, and was, and is, liable to sale for the payment of the same. Having reached this conclusion, I am satisfied that the plaintiff is entitled to judgment and such relief as is consistent with the findings hereinbefore announced. The plaintiff, the Bank of Charleston National Banking Association, as appears from the evidence, purchased said premises at execution sale, under its judgment, complied with the terms of sale, and received the sheriff’s deed to the property. It also appears that the present action was commenced before the plaintiff obtained the conveyance from the sheriff. As soon, however, as the plaintiff, the Bank of Charleston National Banking Association, received the conveyance from the sheriff, the legal title of E. H. Dowling, the judgment debtor, which, as I have found, was then in him, was divested, and the plaintiff, the Bank of Charleston National Banking Association, acquired his rights, and became entitled to the property and its possession. Now, while it is true that the plaintiff could not maintain an action for ejectment against E. H. Dowling until it obtained the sheriff’s deed, and thereby acquired the legal title, yet, it seems to me, where all the parties are before the Court, and there is no doubt as to the facts, that the court of equity has the power to render such judgment as will fix and protect the rights of all parties, and not compel the plaintiff, the Bank of Charleston National Banking Association, to resort to another action to obtain that to which it is clearly entitled, and which, as I think, the court of equity may award in the present action. Under all the circumstances, it seems to me that the plaintiff, the Bank of Charleston National Banking Association, is entitled to the possession of the property, and that the Court should award it in this action. Of course, the plaintiff, the Bank of Charleston National Banking Association, must take the property subject to the homestead rights of F. H. Dowling, to which I have held he is entitled. * * * From this decree the defendants appeal on following exceptions: First. As to the deed of Sheriff Lancaster to the plaintiff, the Bank of Charleston, and the alleged legal title of the said plaintiff arising out of said deed, it is respectfully submitted that his Honor erred in finding: 1. That the plaintiff could avail itself of said legal title in this action; whereas, the Supreme Court of this State, in 45 S. C., 677, have decided that it could not, for the reason the deed was delivered after the commencement of this action, and the said finding of his Honor, the presiding Judge, is contrary to the principles of said decision. 2. That the execution and levy under which the sale upon which said deed was based was regular, and that the land sold was duly levied upon; whereas there is no legal proof going to show that any levy was ever made upon the land before the sale, and consequently he should have held that the sale was void. 3. That said deed was valid; whereas he should have found that the sheriff had no power or right to sell said lands until the homestead of the defendant, F. H. Dowling, was set off therein, and, as the question of homestead had not been settled, the sale was void. 4. That the plaintiff, the Bank of Charleston, was entitled to have possession of the land described in the complaint in this action in any way whatsoever. Second. That-as to the homestead exemption of the defendant, F. H. Dowling, it is submitted that his Honor, the presiding Judge, erred in decreeing and finding: That the homestead that was set off by the three appraisers should be set aside and a new homestead assigned to the said defendants, for the reason that said question was never before his Honor nor included in the pleadings in this case, and introduced merely as evidence as an attack on the title of the plaintiff; and for the further reason that the exceptions to said homestead question are pending on the law side of the Court, and have never been heard, and his Honor had no jurisdiction in the premises to pass upon that question; and, further, if he undertook to determine that question, he should have found, as it is respectfully submitted, that said appraisement and set off of homestead-should be confirmed. Third. That as to the deed of the defendant, E. H. Dow-ling, to his brothers, J. C. and C. T. Dowling, of 1,800 acres of land, the subject of the action, said deed, dated the 24th of November, 1874, -it is respectfelly submitted that his Honor, the presiding Judge, erred in decreeing and finding as to the same that said deed was fraudulent, null, and void; that at the time of its making the grantor and grantees contemplated a fraud upon the creditors of B. H. Dowling; that E. H. Dowling then had creditors or was then insolvent, either him or his two brothers, or that Wroten & Dowling were then insolvent; that there were badges of fraud connected with said deed, and that E. H. Dowling held possession of the same after the execution of the deed. Whereas his Honor should have found, as it is respectfully submitted, that said deed was not called in question either in the pleádings or in the proofs in the case; that there was no testimony assailing said deed in any way; that fraud is never presumed, but must be clearly proved; that at the time of the making of said deed the testimony is, that said E. H. Dowling had no creditors to be affected by said deed; that there is no testimony going to show that E. H. Dowling or his two brothers, or Wroton & Dowling, were insolvent; that there are no badges of fraud in connection with said deed, nor that B. H. Dowling held possession of said land after the execution of said deed. ' ■ Fourth. It is submitted that his Honor erred in finding that the First National Bank of Charleston has been, by order of the Court, made a party plaintiff in this proceeding, or in any way finding that the judgment of said First National Bank of Charleston is valid as a lien upon the property in question, the same being null and void upon its face; and his Honor further erred in not finding, as to the judgment of the county of Barnwell, that the same was paid and discharged. Fifth. It is submitted that his Honor erred in finding that the defendants, E. H. Dowling and John C. Dowling, were insolvent since the 1st day of January, 1875, and also erred in finding that John C. Dowling and C. T. Dowling surrendered possession of the tract of land described in the complaint and known as the mortgaged premises, after condition broken, to E. H. Dowling, with the express understanding that it was in full satisfaction of the mortgage debt; whereas he should have found to the contrary, that it was known to said C. T. Dowling, as testified by him, and also known to John C. Dowling, at the time that they went out of possession of the land in question, that the mortgage in question was the property of Mrs. Rebecca A. Barr, and that they could not get possession of said mortgage; and, further, he should have found that the possession of the premises, the mortgagors being out of possession, was taken in charge by the defendant, E. H. Dowling, as the agent of the then mortgagees, Mrs. Rebecca A. Barr and Mrs. V. S. Dowling, and that according to law, which is recognized by the Circuit Judge, the legal title to the premises passed into Mrs. Rebecca A. Barr and Mrs. V, S. Dowling. Sixth. That his Honor erred, it is submitted, in rejecting the testimony of the defendant, E. H. Dowling, as to the manner in which he took possession of the property in question, as agent of Mrs. Rebecca A. Barr and his wife, for the reason that he was in no way estopped by his answer not stating when and by whom possession was delivered to his wife, V. S. Dowling; and for the further reason that the answer of the minor defendants was before his Honor, and upon that answer alone such testimony is competent. Seventh. That his Honor erred, it is submitted, in finding that the rental value of the land in question was from $75 to $100 per farm’, and that there were sixteen one-horse farms upon the tract of land in question; and in also finding that Mrs. Barr had to account for the rental value of the property during the period that she was in possession thereof; and that P. C. Spann had so to account, and that the mortgrge held by them was satisfied thereby; for the reason that said parties did not enter into possession of said land with any understanding that they were so to apply said rents and profits, or that they are in law bound so to apply said rents and profits, as to the creditors of.E. H. Dowling who, as such, were not entitled to such application. It is also submitted that his Honor erred in finding anything as to an accounting of the rents and profits; that no such accounting was contemplated in the proceedings; none has ever been ordered, and no testimony responsive to the same has ever been taken. Eighth. As to the transfer of the mortgage given by C. T. and J. C. Dowling to E. H. Dowling, and assigned by said E. H. Dowling, on March 15th, 1876, to Mrs. Rebecca A. Barr, it is submitted that his Honor erred in finding: 1. That said transfer was fraudulent, null, and void, and given and accepted with the intention of delaying, hindering, and defeating the creditors of E. H. Dowling, who transferred the same; whereas his Honor should have found, as sustained by the uncontradicted testimony (he having found that the saidN transfer was for a square, honest debt), that same was given by E. H. Dowling to hissistesas an honest preference of a debtor to a creditor, without any intention on the part of the debtor to hinder or delay his creditors, and without any knowledge on the part of Mrs. Barr of any such intention on the part of her brother; and he should have further found that the understanding between Mrs. Barr and Dr. Dowling was that she was first to be paid her debt out of the mortgage, and then if there was anything left it was to go to his wife, V. S. Dowling, the assignment being not in proportion of one-half to each, but as aforesaid; and should have found that all of the debt of E. H. Dowling to Mrs. Barr was due and unpaid. 2. That the date of the transfer was at some time subsequent to the 15th of March, 1876; whereas he should have found, by the unquestioned evidence, that the bond and the mortgage was actually delivered, for valuable consideration, to Mrs. Barr,, in December, 1875, and that the written transfer was made actually on March 15th, 1876, and at no other time; and he should have further found that at said time of said transfer there were no creditors against the defendant, E. H. Dow-ling, not even the cause of action of the plaintiff, the Bank of Charleston, in this suit; and he should have further found that although the defendant, E. H. Dowling, had signed a bond to the State of South Carolina for his brother, J. C. Dowling, as treasurer, yet no liability arose on said bond,, and that the judgment recovered by the State against J. C. Dowling and his sureties was upon his subsequent bond. 3. That his Honor erred in finding that when the confession of judgment was made from E. H. Dowling to Rebecca A. Barr, it was made for a greater amount than was due. Ninth. That it is submitted that his Honor should have-found, as a matter of law and fact, that the transfer of the mortgage in question from E. H. Dowling to Rebecca A. Barr and V. S. Dowling was made when the defendant, E. H. Dowling, was solvent and had no creditors, as far as the testimony in the case is concerned; that it was honest, good, and valid, and that, though given as a security for the debt of Mrs. Barr, and the balance as a gift to his wife, it vested, when the debt to Mrs. Barr was not paid, the title of the mortgage in Mrs. Barr and Mrs. Dowling as mortgagees;, and that when the mortgagors, C. T. and J. C. Dowling,, went out of possession in December, 1877, the fee of the land in question at common law passed into said mortgagees, and that at that time Rebecca A. Barr and V. S. Dowling became the legal owners of the property. Tenth. It is submitted that his Honor erred in finding that there was no consideration for the transfer of the mortgage in question from Rebecca A. Barr to P. C. Spann, and that said transfer was a part of a scheme to delay, hinder, and defeat the creditors of E. H. Dowling, for the reason that there is no testimony to show that any such intention existed; and that, even if it did exist on the part of E. H. Dowling and P. C. Spann, there was no participation in or knowledge of it by Mrs. Rebecca A. Barr; and that, in this connection, his Honor distinctly erred, in stating what was the consideration of said transfer, in entirely omitting the truth that a part of the consideration was an undivided one-half interest in the 1,000 acres of land upon which stood the Steadman mill. Eleventh. That his Honor erred in finding that the sale of the Mike Barr property from E. H. Dowling to P. C. Spann was without consideration; whereas the testimony shows beyond question that $3,000 was paid tlierefor, and that P. C. Spann was a man of means at the time of the transfer. Twelfth. That it is submitted that his Honor erred in stating it as law that, in transactions between relatives, “the burden is placed upon them to satisfactorily explain the transaction charged with fraud;” whereas it is submitted that the law is, that whilst a less degree of proof is required in matters between relatives than outsiders, yet it is the law, in all cases of fraud, to prove the fraud to the satisfaction of the Court; and not only to prove the fraudulent intent of the grantor, but the co-operation and knowledge of the grantee with the grantor in the fraudulent transaction; and if this be not proven, the fraud is not established. Thirteenth. It is submitted that his Honor erred in finding that the transfer of the papers in question by P. C. Spann to his sister, V. S. Dowling, was null and void, on the ground that there was no consideration between the parties, and that the same was a part of a scheme to rob the creditors of E. H. Dowling; whereas it is submitted that he should have found, upon the testimony and the greater weight of' the testimony, that said consideration was full, and that said transfer was honest and without taint of fraud. Fourteenth. It is submitted that his Honor, having found the fact that there was a deed from the defendant, J. C. Dowling, to V. S. Dowling, shortfy before her death, covering his half interest (if he had any at that time) in the land in question, erred in finding that said deed was null and void; and he should have held that said deed was valid, and was a conve3?ance of a mortgagor to a mortgagee of a half interest in the property, and that the fee of the half interest was vested in her thereby. And it is respectfully submitted that the least his Honor could have held in this action was that Mrs. V. S. Dowling was the owner of a half interest in this property, having the deed therefor of J. C. Dowling, and that said interest passed to her estate, and that the other half interest in said property was covered by the mortgage — that is to say, the interest of Mrs. Rebecca A. Barr in said mortgage, which had been transferred from her to P. C. Spann, and by P. C. Spann to V. S. Dowling, and that the same was held by the estate of V. S. Dowling; and that said debt so transferred was a valid and binding lien on the property as to the half interest thereof prior to any claim of any judgment creditor of the defendant, E. H. Dowling. Fifteenth. It is submitted that his _ Honor erred in construing the will of the testatrix, Virginia Spann Dowling, as he did, and in decreeing that the same vested in B. H. Dowling, a lpvyable fee in the land in question; whereas he should have found that said will simply created the defendant, E. H. Dowling, his executor and trustee under the said will, and that the fee in the property covered by said will vested in him as such executor in trust for the use and benefit and behoof of the minor children of said testatrix, with power to sell the same, and to reinvest the proceeds subject to like limitations and trusts. Sixteenth. It is submitted that his Honor erred in passing upon the question of the strict statute of limitations, which was meant to apply to the legal title of the plaintiff, inasmuch as said legal title was not to be considered by the Court in this action, according to the previous decision of the Supreme Court; anditisfurthersubmittedthat his Honor erred in not dismissing the equitable cause of action of the plaintiff set up in the complaint, and the evidence, on the ground that same was a stale claim and was barred in equity by laches and a lapse of time. Seventeenth. It is submitted that his Honor erred in not decreeing that the complaint should be dismissed with costs, for the reason the testimony in the case clearly showed that the plaintiff was not entitled to any relief whatsoever, either legal or equitable. cite: Error to grant legal relief: 45 S. C., 677; 14 S. C., 434; 47 S. C., 203. No proof of levy: 23 S. C., 96; 14 S. C., 480. Sale without assigning homestead is void: 26 S. C., 1; 29 S. C., 175; 32 S. C., 264; 47 S. C., 137. Deed in question not proven to have been executed to delay and defraud creditors: 37 S. C., 373; 47 S. C., 100. Mortgagee in possession only chargeable with rents and profits received: 47 S. C., 582; 42 S. C., 536; 14 S. C., 292; 16 S. C., 470. Mortgage may be assigned orally by mei'e delivery: Vor. Code, 93; 20 S. C., 139; 4 S. C., 257; 38 S. C., 457; 12 S. C., 167. Subsequent creditors cannot attack voluntary transfer except for fraud: 22 S. C., 528; 28 S. C., 111. Claim of plaintiff barred by laches: 22 S. C., 41; 24 S. C., 99; 16 Ves., 254; Harp. Eq., 271; 2 Strob. Eq., 27. cites: As to construction of will: 1 N. & McC., 71; 2 McC., 66; 16 S. C., 507; Fable v. Brown, 2 Hill Eq.; Buist v. Dawes, 4 Rich. Eq.; Carr v. Porter, 1 McM.; Smith v. Poyas, 1 DeS; 10 Johnson, 505; 4 Rich. Eq., 475; 4 T. R.,-38; 7‘Ves., 567. cites: Rule as to findings of fact below: 45 S. C., 303; Con. 1895, art. 5, sec. 4; 47 S. C., 347. Defendant will not be permitted to deny statement in verified answer: 44 S. C., 1; 30 S. C., 564; 38 S. C., 504; 23 S. C., 401; 40 S. C., 255; 18 S. C., 606; 28 Mo., 346. If mortgage assigned as collateral and gift, assignee takes thereby no legal title to la.nd: 15 S. C., 170. Conveyance to hinder, delay, and defeat creditors is void: 1 Hill, 22, 382; 27 S. C., 97. Court granted proper relief: 27 S. C., 97; 45 S. C., 683; 41 N. Y., 107. Construction of will: 4 Rich. Eq., 476; 18 S. C., 184; B. Mun., 242; 52 Gratt., 257; 16 S. C., 557; 27 S. C., 514; 15 S. C., 277; 97 N. Y., 421. cite: As to construction of will: 13 Am. R., 23; 16 John., 537; 19 N. H., 85; 1 Salk., 229; E. R., 10 Eq. Cas., 267; E. R., 14 Eq. Cas., 49; 6 Jurist N. S., 1360; L. R., 8 Ch. Div., 540; 25 Miss., 440; 10 S. C., 82; 28 Am. Rep., 2; 15 S. C., 442; 38 N. J. Eq., 430; 32 Gratt., 357; Tenn. Ch. R., Cooper’s ed., 302; 15 S. C., 277.