Bemis v. Waters

• Decision Date: 30 August 1933
• Docket Number: 13687.
• Citation: 170 S.E. 475,170 S.C. 432
• Parties: BEMIS et al. v. WATERS.
• Court: South Carolina Supreme Court

170 S.E. 475

170 S.C. 432

BEMIS et al. v. WATERS.

No. 13687.

Supreme Court of South Carolina

August 30, 1933

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by Inez A. Bemis and others against Mary A. Waters. From an order overruling a demurrer to the complaint, defendant appeals.

Reversed.

Nelson & Mullins, of Columbia, for appellant.

Moorman & Moorman, of Columbia, and Mendel L. Smith, of Camden, for respondents.

W. C COTHRAN, Acting Associate Justice.

After this case was tried in the court of common pleas for Richland county, resulting in a mistrial, the defendant interposed a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by Honorable W H. Townsend, circuit judge; no reasons being given for his order. From the order overruling the demurrer, the defendant appealed to this court.

The complaint alleged that Mrs. Irene J. Austin, the mother of the plaintiffs and of the defendant herein, owned a certain real estate in the city of Columbia. That prior to May 26 1927, Mrs. Austin owned a house and lot at 1224 Pickens street, together with other real and personal property, and that she conveyed the Pickens street property to the defendant, reserving to herself a life estate therein. The date of the deed is not given, but from the wording of the complaint we presume the deed was dated May 26, 1927. The complaint further alleged that the defendant had great influence over her mother, Mrs. Austin, and that the defendant, together with others who had dominance over Mrs. Austin, influenced her, against her will, to convey said premises to the defendant; that said conveyance was without the knowledge of the plaintiffs, and that the intention of the defendant was "to deprive the Plaintiffs of their right to inherit the said real estate." These facts are, for purposes of the demurrer, taken to be true.

The complaint further alleged the death of Mrs. Austin on April 2, 1929, and that she left a will which, after a few specific legacies, gave all of her property to her seven children equally, including the defendant herein, by a residuary clause. The date of the will is not given.

The real gist of the complaint is contained in the tenth paragraph thereof, which is as follows: "10. That by her conduct as aforesaid, the defendant has deprived the plaintiffs of their right to inherit five-sevenths of said real estate, so obtained by the defendant, to their actual damage Six Thousand Four Hundred and Thirty ($6,430.00) Dollars, and that the defendant by reason of her aforesaid conduct, is liable to the plaintiffs in the sum of Five Thousand ($5,000.00) Dollars punitive damages also."

Paragraph 3 of the complaint alleges that each of the children of Mrs. Austin has an undivided one-seventh interest in her estate under her will, and the argument of the respondents is to the effect that a cause of action existed in favor of Mrs. Austin, which either survived her death or was bequeathed to all of her children under the residuary clause. If Mrs. Austin had a cause of action against Mrs. Waters as, under the allegations of the complaint, she undoubtedly had, it was either in equity to have the deed to Mrs. Waters set aside, or it was for damages for the alleged fraud perpetrated upon her. But the complaint is not based upon either of these causes of action, although the theory of the complaint is that the plaintiffs derived their right to maintain the present action from the residuary clause of the will or by survival. In neither event can the position of the plaintiffs, respondents herein, be sustained, for the very simple reason that the cause of action set forth in the complaint, to the effect that the plaintiffs were deprived of their right to inherit from their mother by the conduct of the defendant, was never possessed by Mrs. Austin, and hence would neither survive her death nor be a subject of disposition under her will.

But it is argued that the plaintiffs have a cause of action against the defendant for an accounting of the proceeds derived from the sale of the real estate after the death of Mrs. Austin, said real estate having been sold by Mrs. Waters, and the attorney for the appellant seems to concede as much in his argument. With this contention and its attendant concession we are not now greatly concerned as the question is not now before us. Our inquiry is directed solely to whether the complaint sets forth a cause of action in favor of the plaintiffs, based upon the deprivation of their right to inherit by the conduct of the defendant.

During the lifetime of an ancestor, there are no heirs and certainly no vested right to inherit from such ancestor. There frequently is an "expectant interest." But the voluntary act of the ancestor, done in a perfectly legal way, frequently renders this expectancy a mere delusion. Upon the death of the ancestor either the provisions of a will or the operation of the statute of distributions (Code 1932, § 8906 et seq.) will govern the disposition of the property. The right to inherit, during the life of an ancestor, does not exist.

But suppose we take the view that the plaintiffs have endeavored to bring this suit in tort as one belonging to Mrs. Austin and...