50 S.C. 514 | S.C. | 1897
The opinion of the Court was delivered by
This action was commenced on the 28th May, 1896, in the Court of Common Pleas for Rich-land County. The complaint alleged in substance: In first paragraph: That Lucy P. Green, widow, late of the city of Columbia, in this State, departed this life on the 6th day of August, 1864, leaving of force her last will and testament, whereby, in the first item thereof, she devised as follows: “1st. I devise and bequeath to my daughter, Lucy J. Green, my house and lot in Columbia, my present residence, together with all the furniture and things appurtenant in the house and kitchen. The lot contains one acre and a . half, and is separated by a fence from my adjoining lot. This devise is made to her for life, for her sole and separate use, not subject to debts, contracts or control of any husband with whom she may intermarry. At her death, I devise and bequeath the same to my four sons, Allen J. Green, Halcott P. Green, Frederick L. Green, and John S. Green, and the children of my daughter Lucy, if she should have any living at her death, they taking among them one share; if she leaves none living at her death, then to my four sons.” 2. That the defendant, Lucy J. Green (who is the devisee for life named in said will), immediately after the death of said testatrix, took possession of the said lot of land, and in person or by her tenants occupied the
All the parties defendant have answered — the infant defendants through guardians ad litem. The answer of the defendant, Miss Fucy J. Green, is substantially as follows: 1. That she admits the allegations of paragraph 1 and all of paragraph 2 of the complaint, ex'cept that fire occurred in 1877 and not in 1878, as alleged; admits all of paragraph 3 and 7 and all of paragraph 8, except she alleges the money received by her on the cash payment was not sufficient to complete the said buildings; the deficiency having to be supplied from other sources. She admits 11,12,13,14,15, and 16, except the age of Fucy P. Heyward, and she alleges the said Fucy P. Heyward is under fourteen years of age. 2. Answering paragraph 4 of the complaint, she admits that no part of the insurance money was used in rebuilding, but denies every other allegation of said paragraph. 3. Answering paragraph 5, she denies that any part of the purchase money of the said tract of land was the insurance money. She admits her purchase for the price therein alleged, but had no knowledge of the application of the proceeds of the sale. She denies each and every other allegation in said paragraph contained. 4. She admits so much of paragaaph 6 as alleges her purchase at sheriff’s sale of the one acre lot at $590, but denies that same was paid for with insurance mone3'. She admits her ownership of the Scott judgment, and alleges that the same was held by her as collateral for a loan of a portion of the insurance money, but alleges that if any part of the purchase money of said lot was applicable to the Scott judgment, it was a very small portion thereof, and she denies every other allegation in said paragraph inconsistent with the foregoing. 5. She denies all the allegations of paragraph 9 and all the allegations of
Further answering the complaint, she alleges: 1. That the said property mentioned in paragraph 1 of said complaint came to her just before the occupation of Columbia by the Federal troops; that by the said public enemy it was gutted, injured and defaced, ánd finally seized and occupied as a hospital for the troops, and a large portion of the rents allowed this defendant by the government was used by her in repairs made necessary by the casualties of war. That when said property came into her possession it was uninsured, and she with her own money insured her interest therein, for her own use and benefit, and for ten years prior to the said fire, paid the premium of insurance thereon, which together with the interest aggregated the sum of $678; and she submits that, under the circumstances heretofore set out, the remaindermen have no right or interest in said insurance, nor is there any obligation on this defendant to use the said fund in rebuilding. But even if it be held that the insurance money is not the property of the life-tenant, then this defendant submits that upon the burning of the dwelling house, the amount of the insurance money, less the amount paid by this defendant in repairs made necessary by the casualties of war, and to procure and maintain said insurance as aforesaid, which amounts in equity and good conscience she must first be reimbursed
All the defendants having answered, the plaintiffs served upon them the following notice: “Please take notice that, on behalf of the plaintiffs, we will demur against the answers before his Honor, the presiding Judge, at the ensuing term of the Court of Common Pleas for Richland County, at the court house in Columbia, S. C., on the call of the docket, or as soon thereafter as counsel can be heard. Such demurrer being directed against so much of the answer of the said Buey J. Green (and of the other answers referring to the same), beginning with the words, ‘Further answering the said complaint,’ just after the first paragraph 6 of the answer and embracing the remaining portion of said answer, such portion of the said answer being so much of it as sets up a further and affirmative defense as new matter. The ground of such demurrer being that such new matter does not contain a defense, nor does it call for the ordering of any other persons to be made parties in the said cause.”
At the hearing before his Honor, Judge Buchanan, he made the following order: “This case came up before me on a demurrer by plaintiffs to the second defense pleaded by Buey J. Green and other defendants to the complaint. The ground of the demurrer is that the new matter set up in such second defense ‘does not constitute a defense, nor does it call for the ordering of any other persons to be made parties in the said cause.’ The issue raised by the demurrer was fully argued by counsel for plaintiffs and defendants. It does not seem to the Court that the matters stated in such defense should properly be considered in this action. It is an action in which the complainants claim that certain pro-
The defendants, excepting the infant, E. G. DeSaussure, appealed from Judge Buchanan’s order, and also gave notice that they would, upon demurrer to the complaint, in that it failed to state facts sufficient to constitute a cause of action, move to dismiss the complaint. Eet these grounds of appeal and also motion to dismiss appear in the report of the case.
It will be observed, too, that this was an action on the policy itself with the insurance company. Still, as between Tilton and J. M. Graham, Tilton would have been adjudged as entitled to the proceeds of the policy, even if the same had been paid to Graham by the insurance company, whenever it was made to appear that Tilton was the owner and Graham his agent. It is to be regretted that the decisions of the courts of the different States of this Union are not in accord as to the relation a life-tenant bears to the real property which may be insured, so far as the remaindermen are concerned. All admit that if the will or deed, which creates the life estate, requires a policy of insurance to be effected by the life-tenant, the proceeds of such insurance should be used in rebuilding the property destroyed by fire, or put at