16 S.C. 155 | S.C. | 1881
The opinion of the court was delivered by
This was an action for the possession of a tract of land lying in Bichland county, latterly known as the <e Shiver Place,” and ten thousand dollars damages, besides rents and profits to the amount of fifteen thousand dollars.
Drury Bynum, owning a large estate, consisting of several tracts of land, slaves, &c., died about January, 1837, leaving no widow and only one legitimate son, William Bynum. He left a will, by which he disposed of his property as follows:
By the first clause he gave to his four children, Nathaniel, Sarah, James and John Gray, “ whom he had begotten by Sally Bryson,” one-fourth part of the clear value of his estate.
By the second clause he gave to his son, William [who was legitimate], his mill tract of land; confirmed certain gifts previously made to him, to be in lieu and bar of all claim said William might have against him on any account whatever.
By the third clause he disposed as follows: “ I give, devise and bequeath the whole of the rest and residue of my estate, real and personal, to my friends, John Scott, William Weston and Wade Hampton, Sr., for life, and the survivor of them, his heirs, executors, administrators or assigns, in fee-simple, absolutely and forever. It is my wish that my said friends shall hold the property thus devised to them free from all trust whatever. Nevertheless, I have devised and bequeathed the same to them, in the confident expectation and hope that they will permit my children by Sally Bryson, to wit: Nathaniel, Sarah, James and Gray, for whom I am under a sacred obligation to provide, to have the use of the whole of the estate, real and personal, absolutely and forever, in the manner following: that is to say, that' my friends will permit the said James and Gray to have, &c., * * * The balance of my swamp and bluff lands I wish to be divided equally among my children, Nathaniel and Sarah. And it is my earnest hope and expectation that my friends, John Scott, William Weston and Wade Hampton, Sr., will permit the balance of my lands to be equally divided between Nathaniel and Sarah, my children by Sally Bryson. * * * And it is my hope and confident expectation that my said friends will carry into effect these, my wishes, by conveyances proper to that end, after my death, and, especially, in relation to my daughter,
By the fourth clause he declared that if the foregoing provision was void, he gave the whole residuum of his estate to John Scott, William Weston and Wade Hampton, Sr., for life, and to the survivor forever, without any expression of his wishes, hopes or expectations.
By the fifth clause he directed that if any attempt should be made “ to impair his will or any part thereof,” the second clause of his will should be void, and the property therein given to his son William should also go to John Scott, William Weston and Wade Hampton, Sr., their heirs and assigns forever. And these same gentlemen were nominated executors of the will.
The will was proved, but the gentlemen named as executors never qualified or accepted the devises given or trusts imposed, and they are all ifow dead.
It appears, that soon after the death of his father, the legitimate son, William Bynum, filed a bill in equity against all the illegitimate children entitled William Bynum et al. v. James Bynum and others, “for settlement and partition.” The pleadings in the cause have been lost or destroyed, and the precise scope of the bill cannot be known, except so far as it may be gathered from certain orders in the case, which, in some way, have escaped the fate of the general record and are in existence. By these orders, copies of which can be found in the case, it .appears that the children, legitimate and illegitimate, all of whom were of age except James and Gray, entered into an agreement to disregard the will entirely, and have a new division of the whole estate upon certain settled terms. Certain property was allotted to William, the legitimate son, and the remainder to the four illegitimate children. To confirm and ratify this
The commissioner reported favorably, and on November 7th, 1837, Chancellor DeSaussure confirmed the report, ordered that the property contained in Exhibit A. and B., be vested in William Bynum, his heirs and assigns forever; “and further ordered that the remaining estate, real and personal, be vested in the said Nathaniel Bynum, Sarah Shiver, James Bynum and John Gray Bynum, upon their payment to the said William Bynum, the said bond of six thousand and sixty-three dollars, that the said estate, real and personal, herein vested in them, do stand pledged for the payment thereof according to the condition of the said bond, and that they also pay the said Sarah Bryson the said annual annuity of $350,” &c. He further ordered that “a writ of partition should issue to make partition of the remaining estate, real and personal, equally between Nathaniel Bynum, Sarah Shiver, James Bynum and John Gray Bynum. All of which is in pursuance of the agreement of the parties, and to carry the same into effect,” &c.
The commissioner reported that the property assigned as aforesaid to the four illegitimate children, consisted of 110 slaves, horses, mules, &c., and 3,133 acres of land, valued at the aggregate price of $63,774.50. The commissioner allotted all the lands to the two children who were then of age, Nathcmiel and Sarah, and recommended that they should pay to the other two children half the value of the lands in money, viz., $11,356.25. This return was confirmed by Chancellor David Johnson, January 12th, 1838, who ordered that the lands allotted in said return to Nathaniel Bynum and Sarah Shiver and William Shiver, her husband, be vested in them and their heirs as tenants im common forever, &e. It was further ordered
It does not appear when or how Mrs. Shiver and her brother Nathaniel made division of their joint estate in these lands, but it does appear that they paid their brother for their interest in the same.
Some time prior to April, 1842, Sarah and her husband, William Shiver, sold and conveyed the land in dispute, since known as the “Shiver Place,” to Richard Singleton, trustee, for the price of $14,450. Singleton paid the purchase-money, took conveyance of Shiver and wife, went into possession, and he, or those claiming under him, have been in possession ever since— a period of nearly forty years.
In 1844, Nathaniel Bynum, who had become the guardian of his infant brother, John Gray, filed a bill connected with his guardianship, which, among other things, contained the following recital: “That his father, Drury Bynum, departed this life January 15th, 1837, leaving a large estate, both real and personal, and also leaving his last will and testament, disposing of the same among his five children — that is to say, your orator, Nathaniel Bynum, William Bynwm and Sarah Bynum, adults, and James Bynum and John Bynum, minors, which last will and testament, however, was by agreement of all parties interested therein set aside and abandoned, and proceedings for partition of the said estate were instituted in the Court of Equity for Rich-land district, in pursuance of said agreement on September —, 1837, in which proceeding the said William Bynum and others were the complainants, and James Bynum and others were the defendants,” &c.
Sarah Shiver died January 9th, 1850, leaving two children surviving her, Robert C. Shiver and Sarah W. Shiver, both born after the proceedings in partition. Robert C. died, leaving Caleb Bouknight his sole executor and devisee, and Sarah W. intermarried with one Poole, and they are the plaintiffs who
F. W. Fickling, Esq., was appointed special referee “to hear and determine all the issues of law and of fact.” He decided all the issues of law for the defendant, and recommended that the complaint be dismissed. Judge Wallace confirmed the report, and the plaintiffs appeal to this court upon the following exceptions:
1. To his Honor’s ruling in the first exception made to the referee’s report.
2. To his Honor’s ruling on the second exception to the referee’s report.
3. To his Honor’s ruling as to tjie third, fourth and fifth exceptions to the referee’s report.
4. Because all the exceptions to the referee’s report should have been sustained.
These exceptions are not in the best form. They do not state the matter objected to, but refer to other exceptions to the report of the referee, which tends to confusion and makes it necessary to go back through the record to find out what points those exceptions made. “ Exceptions should point out the particulars in which the errors complained of consist.”
As we understand it, the first exception intended to make the point that the referee’s report did “not contain a statement of the facts found and conclusions of law separately.” Section 296 of the code declares that “ they [referees] must state the facts found and the conclusions of law separately.” The object of this requirement is to promote clearness and prevent confusion. If the Circuit judge had considered it necessary, he might have required the report put in form, but he did not. The remedy in such case is to move that the proceedings be referred back for correction. Waite’s An. Code 498. The report does not, in the usual way, state the facts and the law under different heads, but we concur with the judge that they are stated “separately” and with unusual clearness and ability. See Joplin v. Carrier, 11 S. C. 329; State, ex rel. Cathcart v. Columbia, 12 Id. 393.
The other exceptions make the question of title. No exception was taken below to the report finding that Nathaniel Bynum, Sarah Bynum, James Bynum and John Bynum were the illegitimate children of Drury Bynum “by Sally Bryson,” but it has been seriously argued here, that there is no proof of such illegitimacy. That is the most important fact of the case. The will itself, in its terms and in its whole structure, affords at least prima facie evidence of the fact, which has never been dénied. It was taken to be shown before the referee and the Circuit judge. The referee reported it as a fact, and the Circuit judge concurred with him without objection. At that time the matter could have been conclusively settled in a moment. It is now too late to raise the question for the first time. We are judicially satisfied of the fact.
The plaintiffs claim as the children of Sarah Shiver, remaindermen under the third clause of Drury Bynum’s will, which, .as they insist, is legal and binding in all its parts. There is no other limitation in the will except that claimed to exist in that clause. Even assuming the plaintiffs’ view of the case, there are difficulties in the way of their recovery. The action is to recover the possession of a particular tract of land; and before that can be done, it is necessary, not only that they should show legal title, but also that their title connects with and covers the particular land sued for, the “ locus in quo.”
But they urge that, although the Shiver tract is no part of the lands indicated in the will, with limitation over to them, there was a proceeding in equity to divide these lands among the parties, and in doing so the lands got mixed, and the Shiver place was assigned to Sarah'in lieu of .“swamp or bluff lands,” and that thereupon the trusts claimed in the third clause attached upon the land received in lieu of those given by that clause. To sustain this view it is necessary that the partition should have been itnder and by authority of that clause, and in subordination to it. That is not supported by the proceedings in partition. We look in vain for an order to sell and re-invest, or to make an exchange upon the same trusts. It cannot fairly be claimed that these proceedings were intended to carry out the provisions of the third clause of the will.
There are other facts in the record which show that the Shiver tract is not in the place of any lands intended for Sarah under the will. The lands assigned in the partition to Sarah, including the Shiver place, were in part of her interest in the fourth of the estate given by the first clause of the will without limitation; also in part for her proportion of the bond of $6,063 to William in the division with him, and of the annuity of $300 to “Sally Bryson,” and still further in part for $5,678.12, which she was to pay to James and John in the second partition between her and her brother; so that the evidence does not show that the Shiver place was assigned to Sarah in lieu of lands intended for her in the will. The exact contrary is true. The proceedings in equity were inconsistent with the
If there was no difficulty as to the identity of the land, how would the matter stand ? The defendant insists that the whole third clause of the will, including the alleged limitation in it, was illegal and void, and no rights growing out of it can be recognized and enforced by the courts. The act of 1795 declares void any gift or provision beyond one-fourth of a man’s estate in favor of a woman with whom he lives in adultery, or of his illegitimate child or children, he having a wife or lawful children of his own living. The gift is rendered void by the act' only to the extent of the excess. The testator had already given one-fourth of his estate to his illegitimate children by the first clause of his will, and, therefore, any interest intended to be given to them by the third elause was in'violation of the law and void. It is true that the terms of that clause were to John Scott, WilliamWeston and Wade Hampton, Sr., but coupled with the “confident hope and expectation” that they would permit his children “by Sally Bryson” to enjoy it in the manner indicated. Considering the words of the act, which are “by deed of gift, legacy, devise, or by any other ways or means whatever,” we cannot doubt that it was the intention of the testator to create a trust for the benefit of his illegitimate children, notwithstanding his disclaimer of such intention. It is true that
But it is ingeniously argued that, though the third clause was made void as to Sarah, it was good in so far as it made provision for her children, and that as to unborn children neither the parties nor the court could bar their rights. It is true that the act does not, in express terms, reach to the interest of children of illegitimates, but it would seem a strange result if the devise, dead as to the first generation, should revive as to the second. That would certainly, to some extent, defeat the purpose of the act. In the case of Bradley v. Lowry, Spears .Eq. .1, it was held that the act is remedial and should be construed so as to suppress the mischief contemplated by it. In that case a father had given property to the husband. of his natural daughter, and it was held to be a benefit conferred on the daughter within the meaning of the act, because the evident design was to confer a benefit on her through her Imsband in evasion of the statute. The case of Hull v. Hull, 2 Strobh. Eq. 192, was relied on to sustain the proposition that any interest given to the children of Sarah did not fall within the inhibition of the statute. That case was different from this. There, the gift was to Zalina, the illegitimate daughter, for life, with limitation over to her issue. The life-estate to Zhilina was not declared void, for it was a part of the fourth of the estate, which was legal, but in estimating the value of her interest the question arose whether she was to be charged with the value of an absolute estate or only of a life-estate. It was held that she should be charged only with the value of the life-estate,
“ When property is devised to tenants for life, with contingent remainders to persons not in esse, the Court of Equity has the power, for the purpose of partition, on the application of the tenants for life before the coming into existence of the remaindermen, to order a sale of the fee and thereby bar the remaindermen.” Van Lew v. Parr, 2 Rich. Eq. 322; Bofil v. Fisher, 3 Rich. Eq. 1. It will be observed that as soon as the devise was made void by the election of William, the will itself expressly revolted the third clause and substituted therefor the fourth clause, which had no limitation. Besides, by the ordinary rules of construction, the limitation over could not be enforced after the life-estate had been declared void. If the future interest is so limited that it can take effect as a remainder, it cannot be an executory limitation. 2 Minor Inst. 369; Fearne Rem. 385. A contingent remainder may be destroyed at common law by fine or recovery, by merger of the particular estate, or by any displacement thereof, and this is the great and essential
This will at the death of the testator was good, and Sarah's life-estate vested wider it, but when William elected to invalidate it the life-estate of Sarah was destroyed, and that destruction included the contingent interest of the unborn children. As tersely stated by the referee, “ the gift to the issue of the illegitimate daughter was contingent, and fell with the precedent particular estate, upon which it depended.” The gift to Sarah being void, the gift to her unborn issue who survived her was also void.
This being an action at law, the costs, of course, follow the result.
The judgment of this court is that the judgment of the Circuit Court be affirmed.
See rule No. 5 of the Supreme Court, as amended since the filing of this opinion. — Reforteb.