37 S.E. 250 (S.C. 1900), Robert v. Ellis

Citation:37 S.E. 250, 59 S.C. 137
Opinion Judge:McIVER, C.J.
Party Name:ROBERT et al. v. ELLIS.
Attorney:E. F. Warren and James W. Moore, for appellant. C. J. Colcock and A. McIver Bostick, for respondents.
Case Date:November 28, 1900
Court:Supreme Court of South Carolina

Page 250

37 S.E. 250 (S.C. 1900)

59 S.C. 137

ROBERT et al.

v.

ELLIS.

Supreme Court of South Carolina

November 28, 1900

Appeal from common pleas circuit court of Hampton county; D. A. Townsend, Judge.

Action by Pierre Robert and others against L. D. Ellis to recover possession of real estate. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

The following facts are admitted:

"That John H. Robert died on the ___ day of May, 1897, leaving as his sole surviving children and heirs of his body the plaintiffs, Pierre Robert, Jeanie May Jones, and John H. Robert. That the tract of land sought to be recovered in this action, and which is now in the possession of and withheld by defendant, was formerly the property of John H. Robert, the grandfather of plaintiffs, and at his death passed into possession of John H, Robert, the father of plaintiffs, under and by virtue of the last will and testament of his father, the said John H. Robert, as per copy of same certified by Ed. F. Morrall, ordinary in and for Beaufort district, mentioned in notice of intention to introduce the same, served in this action. That John H. Robert, the father of the plaintiffs, went into possession of the land in dispute on the ___ day of ___, A. D. 1852, under the provisions of the will of his father, John H. Robert, and claiming to hold a fee simple title to said land by virtue of the provisions of said will. That on the 21st day of January, 1872, for valuable consideration, the said John H. Robert executed a mortgage of said tract of land to Brigham, Holstz & Co., in which was inserted a covenant of general warranty, and which was duly recorded, according to law, in the office of the register of mesne conveyance of

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Beaufort county. [59 S.C. 139] That afterwards, in an action brought in the court of common pleas in said county of Beaufort upon said mortgage, a judgment of foreclosure and sale was duly rendered thereon, and in pursuance of said judgment the said land was duly advertised and sold at public auction by the sheriff of Beaufort county on the 5th day of December, 1876, and the usual sheriff's title was duly executed on the same day by the said sheriff to the purchasers, Brigham, Holstz & Co., which title was on the 6th of December, 1876, duly recorded in the office of the register of mesne conveyance of said county of Beaufort, and the said purchasers went into possession thereunder. That on the 16th day of December, 1880, the said purchasers, for valuable consideration, duly executed a deed of said land to the defendant in this action, which said deed was duly recorded in the office of register of mesne conveyance of Hampton county on the 28th day of June, 1883, and said defendant has held possession of said land from the time of execution of said deed. That all the records of the court of common pleas and of the court of ordinary of Beaufort district were destroyed on 17th February, 1865. That the certified copy of the will of John H. Robert, signed by Edward F. Morrall, ordinary of Beaufort district, introduced in evidence by the plaintiffs, was recorded in the office of probate court of Beaufort county on some day between the 26th day of July, 1873, and the ___ day of July, 1874."

The following is the will of John H. Robert:

"The State of South Carolina. In the name of God, Amen: I, John H. Robert, of St. Peter's Parish, Beaufort district, and state aforesaid, do make and ordain the following as my last will and testament, hereby revoking all others by me heretofore made. Imprimis, I commend my soul to that God from whose unbounded goodness I have received all mercies, and hope for everlasting happiness, through the merits and atonement of His Crucified Son. First. I order and direct that all my property be kept together until my just debts, legacies, and funeral expenses are paid. Second. I [59 S.C. 140] give and bequeath to my beloved wife, Anna M. Robert, in lieu and bar of her dower, and for the purpose of an easy and comfortable maintenance, my Pleasant Hill plantation, on which I now reside, with all my tract of land thereto adjoining, containing altogether about eighteen hundred and forty acres, more or less; also my Blount Hill plantation, near Turkey Hill, on which I formerly resided, containing seven hundred and forty-three acres, more or less, according to a resurvey plat of Philip Lamar, dated 26th of April, 1810; also, the half of the pine-land tract, containing five hundred acres, bought of F. Aikin and wife, and adjoining the said Blount Hill plantation (this pine-land tract to be divided so as to be wide as the Blount Hill tract where they adjoin, and to give the lower half of said tract to my said wife); also, thirty of my negroes, to be selected by her at her discretion, and their increase, not including Leonora and her two children, Caesar and Charles, and her future increase, which are already secured to her; also, all my household goods, furniture, bed, bedding, bedsteads, tables, chairs, etc., including, also, house supplies, such as sugar, coffee, bacon, etc.; my library of books, kitchen furniture, all the plantation tools on the place whereon I now reside; a portion of the provisions which I may leave at my death, either in house or in fields, equal to the proportionate consumption of herself and the negroes and horses which she will inherit by virtue of this instrument, compared to that of my children and their negroes and horses; also, both of my pleasure carriages, my gig, a choice of four of my horses, one-third of my stock of cattle, all of sheep and hogs, one horse wagon, one ox wagon, one light cart, two mules, four yoke of oxen, and fifteen hundred dollars in money, to be paid her immediately after my decease, as pocket money; any money she may have at the time of my decease to be taken and regarded as a part of the said fifteen hundred dollars. The said property I give to my said wife, to her and her heirs forever. Third. Having already, by deed under my hand, conveyed to my son William H. F. Robert my interest in the Turkey Hill plantation, and having also received his conveyance [59 S.C. 141] of his interest in the Blount Hill plantation, I regard him as provided for in lands. I give and bequeath to my said son William H. F. Robert negroes, Jim Polar (already delivered), Harry and his wife, Dinah, and boy, Lewis; also, all his notes and accounts due me, and horse, Bosar. This property, added to that left him by his grandfather Samuel Maner, will put my said son, William H. F. Robert, on an equal footing with my ___, it is believed, in point of property, except upon divers contingencies hereinafter mentioned, in which case my said son William H. F. Robert will share in common with my other children, which is my wish and intention. I give the said property to my said son William H. F. Robert, to him and his heirs, forever. Fourth. I give and bequeath to my son Lucius C. Robert my Cotton Hill plantation, containing five hundred and twenty acres; also, a tract of pine land near the said plantation, bought of Rev. Alex. Scott, containing six hundred and thirty-nine acres; also, the half of two tracts of land, undivided, containing together eight hundred and sixty-two acres, left me by my father, John Robert (the other half being left to Mary M. Jaudon), said land lying in part in the Savannah, on each side of the public road leading from Robertville to the Sisters Ferry; the said land to be put into his possession at

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his arriving at the age of twenty-one years, or day of his marriage, which first may take place. Should my son Lucius C. Robert, however, die before arriving at the age of twenty-one years, and without leaving lawful issue of his body, or should he come in possession of my Mount Hope plantation by the death of my son John H. Robert, as provided for hereafter, in either case I then give the said land hereby bequeathed to my said son Lucius C. Robert to my three daughters, Cornelia E. Riley, Sarah Isabella A. Robert, and Elizabeth Ann Robert, and to the survivor or survivors, should either of them die before that event. Fifth. I give and bequeath to my son John Hancock Robert my Mount Hope plantation, brought of F. Aikin, containing, by resurvey, eleven hundred and eighty-six acres; also, the remaining half of five hundred acres of pine land brought of said Aikin (the other half being bequeathed as above); also, [59 S.C. 142] a tract of pine land, containing one hundred and twenty acres, adjoining the above tract of five hundred acres, bought of John T. Moss and others; the said land to be put in his possession at his arriving at the age of twenty-one years of age, or day of his marriage, which first may take place. Should my son John Hancock Robert, however, depart this life before attaining the age of twenty-one years, without leaving lawful issue of his body, then and in that case I give the land hereby bequeathed to him to my son Lucius C. Robert, in lieu of the lands bequeathed to him above in item fourth; but should both my sons Lucius C. Robert and John Robert die before attaining the age of twenty-one years, and without leaving lawful issue, then in that event I give the said land to my daughters Cornelia E. Riley, Sarah Isabella A. Robert, and Elizabeth Ann Robert, or to the survivor or survivors, should either of them be dead. Sixth. I give to my grandson Richard Franklin Bostick my gold watch and one dollar in money, in lieu of any further claims on my estate. Seventh. I give to my son-in-law Benjamin R. Bostick one dollar, in lieu of any further claims on my estate. Eighth. I give to my daughter-in-law Elizabeth Robert one dollar, in lieu of any further claims on my estate. Ninth. All the rest and residue of my estate, not otherwise disposed of by this instrument, it is my will and desire shall be equally divided between my two sons Lucius C....

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