100 S.E. 168 | S.C. | 1919
August 25, 1919. The opinion of the Court was delivered by The action was heard by his Honor, Judge Memminger, at the Spring term of Court, 1918, for Richland county, who filed his decree, from which appeal is taken. The action purports to be brought to marshal assets, adjust equities among the parties claiming portions of the land of Emanuel Holman, and to apply to the debts and expenses of this suit and of the estate the lands undisposed of, except in the residuary clause of the will, to the exoneration, as far *434 as possible, of the specific devises under the will, and to set apart the remaining portions of the land devised to the respective devisees.
The points made by the appeal are, first, what standing the infant defendants have in the Court; the guardian adlitem not having excepted to the master's report. This is a matter of discretion with the Court. It is the duty of the Court to guard the rights of infants, whether exceptions have been filed to the master's report or not within the time fixed. The Court can allow exceptions filed at any time, before or at hearing, by an infant. Mr. Justice Hydrick, in Barfield v. Barnes,
It is their duty to safeguard an infant's rights in any case that comes before them, and to see to it that the interest of the infant is fully looked after, protected, and safeguarded.
The next point made by the exceptions is second, that the deed to Mary Holman conveyed to her in her own right a vested remainder in such lands as should be left after such conveyances as were made by direction of Emanuel, defeasible only by execution of a new will by Emanuel Holman, directing her to convey the property to some one else, and that, not having done so, Mary becomes the owner in fee simple upon the death of Emanuel. An inspection of the deed shows that it does not refer at all to any existing will. The deed from Emanuel to Mary shows, first, Mary to sell and convey to such person as she may be directed to do by Emanuel; second, upon the death of Melissa before Emanuel, Mary to convey to Emanuel; third, upon the death of Emanuel before conveyance to him, or upon the death of Emanuel before Melissa; fourth, Mary to convey the land to such person as she may be directed to do by the will of Emanuel; fifth, in default of such appointment, then Mary to have the fee. *435
A deed is a revocation of a will previously made pro tanto, unless provision is made to the contrary in the deed. There is nothing in the deed to show that the will previously made is to remain in force. No reference is made to it in the deed. Provision in the deed necessarily refers, not to an antecedent will, but to a will to be made in the future. The deed contemplated a future direction. The existing will was in the past, and direction, if any, was in the past. The deed contemplated and provided for a future direction, and there was no direction by the grantor after the execution of the deed by him, and these exceptions must be sustained.
This ruling carries with it the next exception, as to whether or not the plaintiffs' attorneys are entitled to a fee to be paid out of the lands involved here. They are not, and these exceptions are sustained.
The next question is the contention that Susan McFaddin was not entitled to be paid $50, or any sum whatever, for the funeral expenses of Emanuel Holman. His Honor, with the facts before him, found that she was, and we are not disposed to interfere with his finding, and this exception is overruled.
Judgment reversed.
MESSRS. JUSTICES HYDRICK, FRASER and GAGE concur.
*436MR. CHIEF JUSTICE GARY did not sit.
