41 S.C. 195 | S.C. | 1894
The opinion of the court was delivered by
William K. Osborne on April 5, 1891, departed this life, seized and possessed of the tract of land described in the complaint, and a small personal estate. He died intestate, and on May 14, 1891, the defendant, Eliza D. Osborne, was duly appointed administratrix of said deceased and took possession of his personal effects; and being the only sister of the whole blood of the iutestate, who died
Upon reading the pleading, the defendant claimed that a question of title was raised, which she was entitled to have tried by a jury, and asked that the question of title be submitted to the jury. The court refused the motion. The defendant then claimed that, upon the allegations in the answer, as to the plaintiff going away with an advoutrer, making an affirmative defence, the defendant was entitled to “open and reply,” which was also refused. The court then proceeded with the trial (the evidence is not in the record), and found that, on 28th October, 1872, the plaintiff and William K. Osborne, the intestate, were lawfully married, and at the time of his death his only heirs at law and distributees were his widow, Sallie A. Osborne, the plaintiff, and the defendant, his only sister of the whole blood. I ñnd also, as matter of fact, that the plaintiff did not go away with an advoutrer, or remain with one, and has not forfeited her inheritance in her husband’s estate. And he ordered the land sold-and the estate divided equally between the plaintiff and the defendant.
From this decree the defendant appeals to this court upon a number of exceptions; but, as the testimony is not before the court, it will.be unnecessary, indeed, impossible, to consider
As was said by Mr. Justice McIver in the case of McGee v. Hall, 23 S. C., 391: “The action was in no sense an action for the recovery of real estate, in the nature of an action of ejectment or of trespass to try titles. It was strictly an action in partition, based upon the plaintiff’s construction of the will of David Hall and the rights of Lemuel Hall in the land, .arising
The judgment of this court is, that the judgment of the Circuit Court be reversed, and the case remanded for such orders as may be thought necessary to carry out. the conclusions herein announced.