22 S.C. 274 | S.C. | 1885
The opinion of the court was delivered by
This is a controversy without action, and it involves but a single question, i. e., whether the plaintiff can convey to the defendant a fee simple title to one-half of certain premises, situate in Charleston, which defendant had contracted to purchase from said plaintiff. It is admitted that as to the other half the plaintiff can make good title.
The lot in question formerly belonged to one Moses Andrews, the father of the plaintiff, who, by his will, dated in 1826, gave and devised said lot to his wife, Louisa Andrews, for life, “and upon her decease the same to be sold and the proceeds thereof to
Upon these facts his honor, Judge Fraser, to whom the controversy was submitted, decreed that the plaintiff could convey the land in fee simple to the defendant; he therefore ordered and adjudged that upon a proper deed conveying the interest in question by the plaintiff being tendered, that defendant do carry out his contract of purchase according to the terms agreed upon. This decree was based upon the following reasoning as expressed in the decree: “The will under which the plaintiff claims gives positive directions that the land shall be sold and the proceeds divided. What she took under the will, therefore, was personalty, and the words added to the will which would have given only a fee conditional in land, gave her an absolute estate in personalty, i. e., in the proceeds of the land. The subsequent election to take the land instead of the money, operates to give her a good title in fee to the land. This election cannot in my view operate to transfer to the land, with a viewr of limiting the estate, words which, as to personalty, create an absolute estate. It was in effect a purchase of an absolute estate with the proceeds which were absolutely hers. It is therefore adjudged that the plaintiff can convey to the defendant in fee simple the one-half of said premises devised to her in the will of her father.”
We adopt the reasoning of the Circuit judge and concur in his conclusion. This conclusion might also be sustained upon another ground if necessary. At the death of Moses Andrews,
It is the judgment of this court that the judgment of the Circuit Court be affirmed.