Opinion
14118
August 5, 1935.
Before DENNIS, J., Marlboro, June, 1934. Affirmed.
Action by Curtis Woodle, as administrator of the estate of Martha Chavis, and others against Nancy Chavis Lundy and others. From a judgment in favor of plaintiffs, defendants appeal.
The following is the decree of Judge Dennis ordered reported:
This matter comes before me upon the report of Henry A. Rogers, Special Referee, to whom it had been referred. The parties plaintiff are the administrator of the estate of Martha Chavis, deceased, and certain of her heirs at law, and the defendants are the remainder of her heirs at law and certain creditors appearing at representatives of her creditors. There being no dispute in this respect, a statement of the facts was agreed on by the parties and reported by the Referee. Quoting this statement:
"This is an action begun in the Court of Common Pleas for Marlboro County by Summons, Complaint not served, on November 29th, 1932. The suit was for: (1) Sale of land in aid of assets to retire the debts of the estate of Martha Chavis, deceased; (2) to ascertain those entitled to receive the balance of the property which was in her possession during her lifetime, and the proportions to be taken by each; (3) for partition.
"It is undisputed that Martha Chavis died intestate, the ____ day of August, 1931; that her personal property was insufficient to pay her debts and recourse must be had to real estate; that Curtis Woodle is the duly qualified, acting administrator of the said estate, nor is there dispute as to any claims against the said estate which have been proven before the administrator, according to his return. At the time of her death Martha Chavis had in her possession two pieces of property, to wit: Eighteen and 21/100 (18.21) acres, less a small acreage sold by her to one Sanders in 1924, and a tract of Fifty-nine (59) acres, more or less.
"It is admitted by all of the parties that the 18.21-acre tract above referred to was owned by Martha Chavis in fee simple.
"It is the contention of the plaintiffs and all of the defendants save Nancy Chavis Lundy, Lewis Chavis, Christopher Chavis, Johnie Chavis and Susie Chavis, children of Christopher Chavis, deceased, all of whom are represented by Messrs. Hyman McInnis, that the tract of fifty-nine (59) acres above referred to passed under and in accordance with the terms of the will of James Chavis, which will is made a part of this Statement as Exhibit `A.'
"It is the contention of the plaintiffs and all of the defendants save the children of Christopher Chavis above referred to that the only lands available for the payment of the debts against the estate is the 18.21-acre tract above referred to.
"The defendants, Nancy Chavis Lundy, Lewis Chavis, Christopher Chavis, Johnie Chavis, and Susie Chavis, children of Christopher Chavis, contend that the said Martha Chavis died seized in fee of all of the lands in her possession at the time of her death.
"It is conceded that in any event partition in kind is impracticable and that all the property should be sold, reserving the right to agree to a private sale under the supervision of the Court; that the complaint correctly states the relationships of the parties and that all the parties are properly before the Court, the infants being represented by duly appointed guardians ad litem, as well as Mary Ann Chavis and Susie Chavis, both being non compos mentis."
It will be seen at once that the question to be determined arises out of the terms of the devise of James Chavis to his children, named in the sixth paragraph (fifth?) of his will. There is no dispute as to the meaning of the devise, but only as to effect of the actions of the parties under it. On the one side it is contended that Martha Chavis died without having "sold, alienated and disposed of her interest," and that therefore the property was obtained directly from her father, James Chavis, and passed to those designated in the will. On the other side, the contention is that she did not die without having sold, alienated, or disposed of her interest, but that in effect she did sell, alienate, and dispose of her interest and that the property she died seized of was not held by her under the terms of the will, but her title was in fee simple and subject to no conditions or limitations.
The fifty-nine-acre tract only is involved in this question for the 18.21-acre tract was admittedly held by her in absolute fee. Inasmuch as the action on which the transfer of title is predicated are those set out in judgment roll 3060, the question really comes down to a decision as to what was intended in that action. This fact is agreed to in the statement above referred to.
To get the matter succinctly before us, James Chavis, after various gifts to his other children, devised in Item 5 of his will all the residue of his property to his wife, Mary Chavis, for her life and after her death the remainder interest to his six children, Celia Ann Miles, Lewis Chavis, Mary Ann Chavis, Martha Chavis, Emily Chavis, and Thomas Chavis, "and their heirs forever, same to be equally divided among them, share and share alike, the child or children of any of them who may predecease their mother, taking the share of his, her or their parent, and should any of the said six named children die without having sold, alienated or disposed of their said interest and share without children them surviving, then and in that case it is my desire, and I hereby devise the share of said deceased child or children to such of my children mentioned in this item as are then living, and to the children of such of them as may be dead," etc. After the death of the life tenant, there was a parol partition among these six children. No deeds were passed, but a plat was prepared and specific tracts were set off to each of the six children. This was in 1902. Martha Chavis, in that partition, was given lot No. 6, as set out on the plat made by R.L. Freeman. No. 4 was set off to Thomas Chavis. Thomas Chavis afterwards bought from Emily Chavis tract No. 5, lying between No. 4 and No. 6. Thomas Chavis sold from the two tracts, 4 and 5, some 15 acres and purchased 1.4 acres adjacent to tract No. 4 from another party to straighten out the line of that tract, and then died, leaving no children, having never married. Thereupon, a partition suit was brought in the Court of Common Pleas for Marlboro County, in which his administrator and the five other children named in said devise were the parties. This roll No. 3060 in the Court of Common Pleas of Marlboro County, referred to in the statement of facts, is the proceeding which is crucial of the decision as to the 59-acre tract herein involved.
Tract No. 4 which Thomas Chavis had taken in the previous partition included the old homestead wherein the family dwelt, and Martha Chavis at least seemed to think that this tract should have been assigned to her. It is stated in the complaint in the partition suit above referred to that there had been an agreement that tract No. 6 given to Martha Chavis was to have been exchanged for tract No. 4, but that the same had not actually been done and that the plaintiffs (who, as stated, were the survivors of the six children named in James Chavis' will, except Mary Ann Chavis, the other sister, who was non compos, and was made a defendant) were willing for this change to be made, provided that Martha Chavis would take tract No. 4 as it then stood; that is, less the portions conveyed away by Thomas Chavis, and should diminish the share that she would take in the Thomas Chavis estate by the amount added to tract No. 4 by Thomas Chavis by the purchase of the additional 1.4-acre tract of land. Attached to the judgment roll is a letter to D.D. McColl, who represented plaintiffs in the partition suit, from Martha Chavis and Lewis Chavis, stating that Martha Chavis was very anxious to have the home tract regarded as hers and to take it in lieu of her tract No. 6, and that she would also be willing that her interest in the Thomas Chavis estate would be diminished by the amount of the acreage added to tract No. 4. There was no objection by any of the parties in the partition proceeding, and the commissioners thereupon, in making their decision, counted tract No. 6 originally allocated to Martha Chavis as a part of the estate of Thomas Chavis instead of and in place of tract No. 4 originally allocated to him, and set off to the various parties their shares in the Thomas Chavis estate as thus made up of No. 6 and No. 5, regarding No. 4 as the property of Martha Chavis, making, however, the adjustments as to Martha's share hereinbefore adverted to, and on their report coming in, the Court by its order dated February 1, 1918, confirmed the same and decreed that Martha Chavis was to be divested of all her right, title, and interest in tract No. 6 of the report of the partition of the James Chavis lands and should take tract No. 4 "in lieu of said tract No. 6," and also allocated to Martha Chavis tract No. 5 of the Thomas Chavis lands, containing 18.21 acres as her share of the Thomas Chavis estate, so that thus Martha Chavis was confirmed of the possession of the home place or tract No. 4 of the James Chavis place, containing 59 acres, more or less, and tract No. 5 of the Thomas Chavis estate, which last named estate was made up of tracts 5 and 6 of the James Chavis estate.
Now, the question to be determined is, Did Martha Chavis hold tract No. 4 subject to the terms of the James Chavis will, or did she take it in effect as a purchase from Thomas Chavis and so hold it free of the limitations of the will?
I am convinced, after going over the judgment roll aforesaid, that what was intended was what the language actually states, that Martha was to take tract No. 4 as if it had been originally allocated to her directly from James Chavis and not from Thomas Chavis. A number of other reasons lead me to this conclusion, but I think it is not necessary to set them out in detail. The language of the decree is sufficient, in my opinion, and I therefore hold that as to the 59-acre tract, it is subject to pass under the terms of the James Chavis devise and is now owned by the following persons in the following proportions: Mary Ann Chavis, one-third; Mary M. Woodle, one-third; Eloise C. Martin, one-sixth; Milwee Owen, one-eighteenth; Inez Owen, one-eighteenth; Lillie B. Owen, one-eighteenth. That tract No. 5 of the Thomas Chavis estate containing 18.21 acres was held by the said Martha Chavis in fee simple, and descended to her heirs under the statute of distributions, subject to the payment, however, of her debts. In this order I have referred to the two tracts of land as the 59-acre tract and the 18.21-acre tract, but it is understood that both of these tracts are subject to a small reduction in acreage by reason of the sale made by Martha Chavis during her lifetime of some 8 acres.
I further find that the various statements of facts contained in the agreed statement of facts are true and that the various claims of creditors which have been filed with the administrator of the estate of Martha Chavis are proper claims and are hereby allowed. The parties to this action have agreed that partition in kind is impracticable and I concur with them in this. I am of the opinion, however, that it would not be for the best interest of the estate to have a public sale of the lands at this season of the year. Since the sale is not to be had in the immediate future, it will probably be necessary for another order to be passed and at that time the administrative matters can be passed on, but I feel that with announcement of my conclusions herein, the parties will be able to agree upon such order or orders and this cause is left open for such purposes.
Messrs. Hyman McInnis and Charles B. Elliott, for appellant, cite: Fee defeasible: 168 S.C. 266; 167 S.E., 414; 157 S.C. 434; 157 S.E., 632; 124 S.C. 443; 117 S.E., 644; 85 S.C. 475; 67 S.E., 735; 42 S.C. 436; 20 S.E., 298; 41 S.C. 209; 19 S.E., 499; 32 S.C. 440; 17 S.E., 45; 32 S.C. 563; 11 S.E., 334; 30 S.C. 184; 9 S.E., 19; 5 Rich. Eq., 83; 8 Rich. Eq., 259; 6 Rich. Eq., 240; 4 Rich. Eq., 262; 2 Hill Eq., 550; 1 Hill Eq., 550; Bail Eq., 298; 2 Bail., 231; 1 Bail., 427; 10 S.C. 376; 1 McCord Eq., 60; 165 S.C. 111; 162 S.E., 911. Contracts: 175 S.E., 429; 165 S.C. 411; 164 S.E., 2; 111 S.C. 347; 97 S.E., 839; 173 S.C. 24; 174 S.E., 491; 74 S.C. 535; 54 S.E., 778; 26 S.C. 251; 1 S.E., 881; 90 S.C. 196; 71 S.E., 301; 32 S.C. 160; 10 S.E., 941. Right to dispose of property: 173 S.C. 185; 165 S.C. 411; 164 S.E., 2; 129 S.C. 367; 124 S.E., 780; 144 S.C. 354; 142 S.E., 612. Fraud: 13 S.C. 183; 170 S.C. 321; 170 S.E., 453.
Mr. E.L. Asbill, for respondents, Milwee Owen and Lillie B. Owen, minors, and their guardian ad litem, T.M. Martin, cites: Intention of testator should govern: 162 S.C. 54; 160 S.E., 165; 165 S.C. 276; 163 S.E., 788; 165 S.C. 1; 162 S.E., 625.
Messrs. Stevenson Lindsay, for respondents.
August 5, 1935. The opinion of the Court was delivered by
The conclusions reached by his Honor, Judge Dennis, in this cause are entirely satisfactory to the Court. His decree, therefore, which will be reported, is affirmed.
MESSRS. JUSTICES CARTER, BONHAM, BAKER and FISHBURNE concur.