18 S.C. 47 | S.C. | 1882
The opinion of the court was delivered by
James Carlton died intestate in March, 1862, and in July, 1862, a bill was filed in the Court of Equity by certain of his heirs, alleging that the personal estate in the hands of the administrator was sufficient for the payment of his debts, and praying for partition of his real estate. The administrator answered, saying that he had assets sufficient for the paylnent of the debts, and consenting to the ■ partition. To this bill the plaintiff, who was then an infant of tender years, and the only child of a deceased -daughter of the intestate, was not made a
No notice was taken of the death of John Carlton in the proceedings then pending for partition, and on September 6th, 1862, an order for a writ of partition to issue was made. In pursuance of this order the writ was issued, to which the commissioners made a return, allotting a tract of land to the defendant, Elizabeth Carlton, the widow of the intestate, as her one-third of the real estate, which, exceeding in value her share by the sum of $23.90, she was directed to pay that amount (to the other heirs, we presume, though it is not stated to whom,) for. the purpose of equalizing the partition. The remainder of the land was recommended to be sold, and, accordingly, on the same day, to wit, September 6th, 1862, an order for the sale was made, and in pursuance of this order the balance of the land was sold on October 6th, 1862. At this sale the defendant, Eowler, became the purchaser, complied with the terms of sale, took titles, went into possession, and, subsequently, conveyed a portion of the land to his co-defendant, Brockman. Three days after this sale the widow of the intestate gave birth to a child, the defendant, Anna Waddill, who claims, as a posthumous child of the intestate, to be one of his heirs, and, as such, entitled to a share of his estate.
These actions were brought by the plaintiff; one for the purpose of obtaining his portion of the tract of land allotted to the widow, and the other for his portion of the land bought by the defendant, Eowler, at the sale for partition, and for rents and profits. The defendant, Anna Waddill, in her answer, sets up a claim for her share in the said lands as one of the heirs of the intestate. The Circuit judge held that, so far as the land allotted to the widow was concerned, she could not be disturbed in the possession of it, unless, upon an inquiry which he directed, it should be ascertained that it exceeded in value her share of the estate, in which event, the plaintiff and the defendant, Anna Wad-dill, would be entitled to their shares of such excess, as. well as to
From this judgment the defendants, Fowler, Brockman and Mrs. Carlton, appeal on the following grounds: Because the Circuit judge erred — 1. In refusing to dismiss the complaint in the case first above stated. 2. In requiring the defendant, Elizabeth Carlton, to pay her own costs. 3. In requiring a re-assessment of the land assigned to said defendant, Elizabeth Carlton, as her distributive share of the real estate of her deceased husband. 4. In holding that the plaintiff and Anna Waddill were entitled to any share in the premises so assigned. 5. In holding that the defendants, J. M. Fowler and Sanford Brockman, should account for the rents and profits of the land purchased by the said Fowler at the partition sale of the real estate of James Carlton, deceased. 6. In holding that the defendant, Anna Waddill, is entitled to any share in the land purchased by the said Fowler as aforesaid. -7. In holding that the defendants, J. M. Fowler, Sanford Brockmañ and Elizabeth Carlton, were bound to account to the plaintiff and Anna Wad-dill for the interest of the latter in the share of John Carlton, deceased, in said premises. 8. In holding that the premises described in the complaint were subject to partition.-
We propose, first, to consider the claims of the plaintiff. We do not see how it can be questioned that he has a right to have partition of the lands in question. He was confessedly one of the heirs of the intestate, James Carlton, and he was not made a party to the proceedings for partition — was an infant at the time,
It is contended, however, that inasmuch as the share of the widow would have been one-third anyhow, no matter what may have been the number of the children, and inasmuch as only one-third of the real estate was allotted to her, that the plaintiff has no cause of complaint against her, as that amount would have been allotted to her even if the plaintiff had been a party to the proceedings for partition. But it must be remembered that persons interested in the subject-matter of litigation are required to be made parties for the purpose of enabling them to be heard at every step taken therein, and as this plaintiff has not yet had an opportunity of being heard as to the propriety of the partition which has been made, he still has that right. It may be that, through collusion, mistake or negligence of the other parties, the land allotted to the widow exceeded her share, or that the partition was open to objection upon some other ground,' and the plaintiff undoubtedly has a right to have the whole matter inquired into; and most unquestionably he has a right to demand from the widow his portion of the amount which she was directed to pay for the purpose of equalizing the partition. This being so, it follows, necessarily, that there was no error in requiring the defendant, Elizabeth Carlton, to pay her own costs; on the contrary, the provision of the Circuit decree, in that respect, is, perhaps, more favorable to her than she would have had a right to demand.
The next inquiry is, whether there was any error in requiring the defendants, Fowler and Brockman, to account for rents and profits. Although there seems to be some conflict of decision elsewhere as to the liability of one tenant in common to account to his co-tenants for rents and profits of the premises held in
Next, as to the plaintiff's claim for his portion of the share of his deceased uncle, John Carlton, in the intestate's estate. John Carlton was originally one of the parties to the proceeding for partition, and had he lived until the decree for partition and sale thereunder was made, his interest would undoubtedly have passed to the purchaser at such sale. But, pending that proceeding, and before any decree for partition, he died intestate, leaving the plaintiff, who was not a party to such proceeding, as one of his heirs-at-law, and no notice whatever was taken of his death in the further conduct of that case. Of course, when John Carlton died intestate, his interest in the real estate of his deceased father at once descended to and became vested in his heirs-at-law, of whom the plaintiff was one, and any subsequent sale of the estate, under a proceeding to which the plaintiff was not a party, could no more divest the interest of the plaintiff in fhe share of his deceased uncle than' it could divest his interest in the estate of his grandfather. It is clear, therefore, that the plaintiff was entitled to claim, not only his share as one of the heirs of his'.deceased grandfather, but also his share as one of the heirs of his deceased uncle, John Carlton; and there was no error in the judgment below in this respect.
Finally we are to consider what is the only real question in the case, the claim of the defendant, Anna Waddill, the posthumous child of the intestate. Under a rule which was rigidly observed by some of the former chancellors of this State, this question could never have arisen; for, according to that rule, a bill for partition of the real estate of an intestate would not
The question, therefore, of the right of a posthumous child to inherit from his deceased father, is, so far as we are informed, for the first time distinctly presented for decision in this State. The rule, elsewhere, seems to be well settled, that a posthumous child inherits from his deceased father just as if he had been born in the lifetime of such father, and had survived him. In 4 Kent Com. 412, it is said: “ Posthumous children inherit, in all cases, in like manner as if they were born in the lifetime of the intestate and had survived him. This is the universal rule in this country. It is equally the acknowledged principle in the English law; and for all the beneficial purposes of heirship, a child in ventre sa mere is considered as absolutely born.” So in 3 Washb. Real Prop., blc. 3, eh. I., § 2, p. 16, it is said: “ Posthumous children inherit in the same manner as if they had been born in the lifetime of their father, and were surviving heirs; •and this doctrine is universally adopted in the United States. And this relates back to the conception of the child, if it is born alive.”
In Wallis v. Hodson, 2 Atk. 115, the intestate died in December, 1724, “and, at his death, left issue, Towers Wallis, his only ■child, an infant, who died within a week after his death, and the defendant, Elizabeth, his widow, eneeinte with the plaintiff, who was born on May 22d following; ” and the question was whether the posthumous child could take any portion of the
An argument in support of a contrary view has been suggested,, drawn from the word “ leave ” in our statute of distributions, and it has been contended that as our statute provides only for those whom the intestate leaves at his death, an unborn child of the intestate cannot be said to be one of those left by him at his death, and, consequently, cannot inherit under the statute. If, however, as we have seen, there is no distinction, in law, between a posthumous child and one born during the father’s lifetime, so far as the right to inherit is concerned, this argument loses its force. But, in addition to this, it has been repeatedly decided that a. devise to the children of one “ living at his death ” embraces a-posthumous child. Clarke v. Blake, 2 Ves. Jr. 673, and the cases therein cited; Jenkins v. Freyer, 4 Paige 52; Steadfast v. Nicoll, 3 Johns. (N. Y.) Cas. 18.
So in Burdet v. Hopegood, 1 P. Wm. 486, the testator devised the premises, “ in case he' should leave no son at the time of his death,” to the defendant, Hopegood, and died, leaving his wife’ pregnant, who afterwards gave birth to a son, the plaintiff, and. it was held that the plaintiff was entitled to the devised premises, the contingency upon which the estate was to go over to the. defendant not having happened; the testator did leave a son,
It may be contended, however, that though a posthumous child is an heir of his deceased father, and, as such, entitled to a portion of his estate, yet, that, as his rights do not attach until his birth, he must take his portion of the estate in the condition in which it is found at his birth; and where, as in this case, the real estate of his deceased father has, before his birth, been converted into money or bonds by a sale thereof, his claim must be confined to his share of such money or bonds, and that he cannot claim a share of the land in the hands of a purchaser.
"We have found one case, which, at first view, seems to support this proposition. Knotts v. Stearns, 91 U. S. 638. In that case, the action was brought to set aside the sale and conveyance of certain real estate in the city of Richmond, Virginia, of which one Edwin Knotts died seized. The order of sale was obtained under a bill filed for that purpose by the guardian of the infant children of the deceased, to which his widow was a party. The case made by the pleadings and evidence was, that the property sold consisted of a house and lot, which, with a few articles of household and kitchen furniture, constituted the entire estate of the intestate; that the house was much out of repair, so much so that it could not be rented, and the parties had no means to repair it, nor had they any other property from which they could derive a support; and that it was manifestly for the interest of all parties concerned that the property should be converted into funds yielding an income. The property was sold on April 5th, 1863, the money paid and invested in Confederate bonds by order of the court, and titles were made to the purchaser. In the month of May, following the sale, the widow gave birth to a posthumous child, and the sale was attacked because this unborn child was not a party to the proceedings, nor were its interests specifically considered in the proceedings
This case, it will be observed, was not a case in which an order of sale for partition was in question, but, on the contrary, was a case in which the order of sale which was attacked, was made by the court for the purpose of changing an unfruitful investment of the property of persons who were not sui juris, into something that would yield an income necessary for the support of such persons. The sale, therefore, might, perhaps, have been sustained upon the principles established by the case of Bofil v. Fisher, 3 Rich. Eq. 1, in which the Court of Equity asserted its power to bar, by its decree for sale, the interest of unborn contingent remaindermen, who, of course, could not be made parties. But such a power would only be exercised when a proper case was made for its exercise — when, as in the case of Knotts v. Stearns, and in Bofil v. Fisher, it has been ascertained, by an inquiry made for that purpose, that a sale was necessary to provide for the interests of those who could be, and were, brought before the court. A proceeding for partition is a very different matter, and presents totally different questions for the consideration of the court; and if, as we have seen, the doctrine
We think, therefore, that the defendant, Anna Waddill, was •entitled to claim the same rights as the plaintiff has been shown to be entitled to, and that there was no error on the part of the •Circuit judge in so adjudging.
The judgment of this court is that the judgment of the Cirouit Court be affirmed.