43 S.C. 266 | S.C. | 1895
The opinion of the court was delivered by
This action was commenced in the Court of Common Pleas for Colleton County for the purpose of cancelling a deed of Martha M. Sires, dated August 12, 1878,
Peter J. Sires, in his last will and testament, says: “I give, devise, and bequeath all my estate, real and personal, to my beloved wife, Martha M. Sires, for and during the term of her natural life or during her widowhood; she to receive the income thereof to her own use, and for the maintenance, support, and education of the minor unmarried children by my marriage with my said wife, in such amount, proportions, and shares to each as she may think proper, with power to my said wife to sell, dispose of, and convey all or any portion of my said estate in such manner, upon such terms and conditions, and to such person or persons, as she may deem best, with power also to invest the proceeds of any such sale in other property or funds, the income of which to be applied as hereinbefore provided; and it is my will that in the event of the marriage of my said wife again, she shall only be entitled during her life to an equal share, with my said minor unmarried children, of the income of my said estate, and of the income of the proceeds from such part, as may have been sold. And it is also my will, and I do hereby provide, that my said wife shall have power to dispose of, limit, and appoint my said estate, and the proceeds of any part thereof that may have been sold, in and by her last will
As hereinbefore stated, the complaint alleges that the title to said lands in fee simple is now in the plaintiffs and defendants in the proportions set forth in the complaint. This allegation is denied by the defendant, Samuel W. Sires, who sets up in his answer title to said land by adverse possession. A legal issue is thus raised which the parties have the right to have tried by a jury, unless a jury trial is waived in the manner provided by law. The case should, therefore, be placed on Calendar 1 for the purpose of such trial, unless such trial be waived. McMahan v. Dawkins, 22 S. C., 320.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed, and that the case be remanded to the Court of Common Pleas for Colleton County for such further proceedings as may be necessary to carry out the views herein announced.