97 S.E. 238 | S.C. | 1918
Lead Opinion
June 25, 1918. The opinion of the Court was delivered by For the reasons therein assigned, the judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES WATTS and GAGE concur.
Dissenting Opinion
I think the judgment of the Circuit Court should be modified to this *132 extent: The family partition, made under the direction of the father and mother of the remaindermen, should be sustained, if and so far as it may be found practicable to do so, without material injury to the rights of the parties, on the general rule in equity to sustain family settlements where it can reasonably be done. The Courts may well presume that such settlements are fairly and equitably made, and they ought not to be torn up after the lapse of so many years, as in this case, especially since the several parties have improved their respective shares, unless it had been made to appear (which was not done) that it was so unjust and inequitable that it ought not to have the sanction of the Court. It may and probably can be sustained in the main, if not altogether. Therefore, I think the commissioners should have been directed to set off to plaintiff the tract which his mother accepted in the family partition as her share, if that can be done without material injury to the plaintiff's and by adding to it so much land from the adjacent tracts as they may find to be necessary to equalize the parties, or by assessing sums of money upon the other shares, if, in their judgment and discretion, equality could be better effected in that way. In other respects, I think the judgment should be affirmed.
MR. JUSTICE FRAMER concurs with MR. JUSTICE HYDRICK.
NOTE. — Order dismissing petition will be found in Addender at end of this volume.