Dixon v. Roessler

• Decision Date: 27 February 1905
• Citation: 50 S.E. 184,70 S.C. 497
• Parties: DIXON v. ROESSLER.
• Court: South Carolina Supreme Court

50 S.E. 184

70 S.C. 497

DIXON v. ROESSLER.

Supreme Court of South Carolina

February 27, 1905

Appeal from Common Pleas Circuit Court of Charleston County; Klugh Judge.

Action by Mary E. Dixon against Car. M. A Roessler. Judgment for plaintiff. Defendant appeals. Affirmed.

Burke & Erckmann, Mitchell & Smith, and N. B. Barnwell, for appellant. Young & Young and W. J. Fishburne, for respondent.

WOODS J.

The plaintiff seeks in this action to subject a lot of land formerly the property of Edward Whitty, now owned by the defendant, to the payment of a bequest made to the plaintiff by Edward Whitty, on the ground that his will made the bequest a charge on the lot. The defendant demurred on the ground that the complaint "does not state facts sufficient to constitute a cause of action against the defendant, in this: that it appears on the face of the complaint, upon the proper construction of the will of Edward Whitty, that the alleged legacy by way of annuity in favor of the plaintiff is not a charge upon the land mentioned in the complaint; also that there are not facts stated showing any personal obligation of the defendant for the payment of the said alleged legacy or annuity." The circuit judge overruled both grounds of demurrer, but did not consider whether the bequest was charged on the lot, because, the will being attached only as an exhibit, he considered it not properly before the court on demurrer. It is true, an exhibit cannot be resorted to on behalf of the pleader to supply a material allegation or to cure a fatal defect. But if the complaint states a cause of action, though with indefiniteness and uncertainty, the exhibit may be used by the plaintiff as giving the requisite definiteness and certainty to the pleading. Cave v. Gill, 59 S.C. 256, 37 S.E. 817; Matthews v. Monts, 61 S.C. 385, 39 S.E. 575. For a still stronger reason, the plaintiff, on the hearing of a demurrer to his complaint, cannot object to the consideration of the exhibit which he has himself attached in order to make his complaint definite and certain. The circuit judge was therefore in error in holding that the will was not before him for consideration.

The particular clause of the will on which plaintiff's claim rests is: "In the third place, I will and desire that my daughter Mary receive during her natural life out of my estate ten dollars per month and at her death it is to revert to the benefit of my estate again." The will further provides: "In the fifth place, I desire that my personal property,...