36 S.E. 563 | S.C. | 1900
July 11, 1900. The opinion of the Court was delivered by J.J. Cooley departed this life on the 13th day of December, 1896, leaving of force his last will and testament. Mr. Cooley's first wife died a short while before the war between the States, having borne him six *172 children, viz: James, Hiram, Lewis, William C., Charstey King and Mary Hall — all of whom are now alive except James, who died in the year 1879. The said J.J. Cooley, several years after his first wife's death, became infatuated with Stacy Chastain, and so intimate were their relations that she bore him seven children, namely: John T. Cooley, Ella Alverson, Thomas O. Cooley, Esther Cothran, Sanford Cooley, Anna Prudence Cooley, and Olliday Cooley. All of these children were confessedly born out of the bonds of wedlock except Olliday Cooley. The said J.J. Cooley provided for his putative children, John T. Cooley, Ella Alverson, Thomas O. Cooley and Esther Cothran, before his death. About the fall of the year 1883, it is alleged, the said John T. Cooley married the said Stacy Chastain, and she ever after lived with him as his dutiful wife, bearing him a daughter, Olliday, in June, 1884. The said John J. Cooley conveyed to his wife a tract of land, containing 35 acres, which she returned for taxation in the year 1884 in her newly wedded name of Stacy Cooley. In the last will and testament of John J. Cooley, he devised "unto his beloved wife, Stacy Cooley," his homestead lot of land, containing 40 1-2 acres; to his putative son, Sanford Cooley, a lot of land containing 31 1-2 acres; unto his putative daughter, Anna Prudence Cooley, a lot of land containing 30 1-2 acres, and "unto my youngest daughter, Olliday Cooley," a tract of land of 30 3-4 acres. After the death of J. J. Cooley, his legitimate children by his first wife (the plaintiffs here) brought an action against the putative children to take from them the lands which had been conveyed to them by J.J. Cooley in his lifetime, but in the action the defendants triumphed over said plaintiffs. So this action, now pending, was brought by the four children named as plaintiffs (the said Charstey King having purchased all the estate of her brother, Hiram Cooley, by which result it was not necessary to make Hiram a party, only suggesting the reason for his absence on the record, which was duly performed), against Stacy Cooley, John T. Cooley, Thomas O. *173 Cooley, Sanford Cooley, Ella Alverson, Esther Cothran, Anna Prudence Cooley and Olliday Cooley, to set aside the devises in the will named and to have an account of the property of the estate by the executors, alleging as the ground to set aside the said devises, that they were a larger or greater proportion of the real clear value of J.J. Cooley's estate, real or personal, after payment of his debts, than one-fourthpart thereof, and were, therefore, in violation of the statute law of this State, so far as the excess over the one-fourth part is concerned. The answer denied these things. It seems that while the son, James J. Cooley, was alive, he was alleged to have had assigned to him some judgment or judgments against his father, J.J. Cooley, and that after the death of the said James J. Cooley, his administrator, Lewis J. Cooley, as plaintiff, had brought an action against the executors of the last will of J.J. Cooley, deceased, to revive said judgment or judgments, and that the action was pending in the Court of Common Pleas against said executors during the year 1899. So that about July, 1899, the following agreement in writing was entered into touching said pending lawsuit: "Counsel agree that the question of the liability of the estate of J.J. Cooley, deceased, and the devises under his will, upon the judgment sued on in the case of Lewis J. Cooley, as administrator, v. John T. Cooley et al., as executors, be determined in this action, all the necessary parties being before the Court, and that the said case on Calendar 1, Common Pleas docket, be discontinued, and that the devisees and legatees be permitted to adopt the answer of the executors in that case in so far as it is applicable to their interest as of this date; case continued." The case at bar was referred to the master of Greenville County to hear and determine all the issues involved. By his report he found as a fact that J.J. Cooley and Stacy Chastain were married, but not until after the birth of the defendant, Olliday Cooley, thus making all the children borne by Stacy Chastain to J.J. Cooley born out of wedlock. Also that the net clear estate, real or personal, of J.J. Cooley, deceased, amounted *174 to $1,993, and that one-fourth thereof was $498.25; also, that the devise to Anna Prudence Cooley was worth $213.50; that to Sanford Cooley was worth $252, and that to Olliday Cooley was worth $300, aggregating $765.50 — which would be $267.25, more than the one-fourth clear value of the estate of J.J. Cooley, deceased; and that by adding interest from the 13th December, 1896, to the date of the report, the $267.25 would amount to $314.61, for which last amount plaintiffs were entitled to judgment against the three devisees, Anna, Sanford and Olliday Cooley. The master also found that the judgment sued on in the case of Lewis J. Cooley, as administrator, v. John T. Cooley et al., executors, is paid by lapse of time, and that the plaintiff is not entitled to recover anything thereon. There were no exceptions taken to the findings by the master, that J.J. Cooley had married Stacy Chastain; that the net value of J.J. Cooley's estate was $1,993; that the devises to Anna, Sanford and Olliday Cooley aggregated $765.50, of which Olliday's devise was worth $300; and that the judgment sued on in the case of Lewis J. Cooley, as administrator, v. John T. Cooley et al., as executors, had been paid by lapse of time, and that plaintiff was not entitled to recover anything thereon; but exceptions were taken to the findings by the master of the illegitimacy of Olliday Cooley. When the Circuit Judge passed upon this exception, he found that the master was in error as to his finding touching the bastardy of Olliday Cooley — holding that the marriage of J.J. Cooley and Stacy Chastain took place in the fall of the year 1883, and that Olliday Cooley, as the issue of that marriage, was born in June, 1884. The Circuit Judge ordered the complaint to be dismissed. From this decree the plaintiffs have appealed. The reporter will set out in the report of the case these grounds of appeal. We may remark, at the outset, that we think that the Circuit Judge erred in dismissing the complaint, for it seems to us that the action ought to be retained in order that the Circuit Court may formulate a decree giving affirmative relief to *175 the defendants against the judgment sued on by Lewis Cooley, as administrator, which the master found was paid, and from which finding by the master no exception was taken.
It remains for us to consider plaintiffs' exceptions touching the alleged error of the Circuit Judge in holding Olliday Cooley a legitimate daughter of J.J. Cooley. It is apparent that if Olliday Cooley is held to be a legitimate daughter of J.J. Cooley, the devises to Anna Prudence and Sanford Cooley, are not null and void under the statute law of our State (sec. 1999 of the Revised Statutes of this State, and cases of Bradley v. Lowry, Speer's Eq., 1; Massey v. Wallace,
So far as the third ground of appeal is concerned, as we before remarked, there is no necessity to consider it, as it is rendered unavailing because of the superior weight of the direct testimony of defendants, and even if admitted, could *178 exercise no force certainly to overcome the positive and direct testimony of the defendants. This ground of appeal is dismissed.
So far as the fourth, fifth and sixth grounds of appeal are concerned, they become mere abstractions in the light of our holding as to the force and effect of the direct and positive testimony of the defendants. They are overruled.
It is the judgment of this Court, that the judgment of the Circuit Court should be so modified that the action shall be retained in order that the Circuit Court may formulate a judgment giving the defendants affirmative relief against the judgment sued upon by Lewis J. Cooley, as administrator; but that so much of said Circuit judgment as denies the plaintiffs any claim against the defendants growing out of the devises in the will of J.J. Cooley, deceased, be affirmed.