Bettis v. Harrison

• Citation: 195 S.E. 835,186 S.C. 352
• Decision Date: 16 March 1938
• Docket Number: 14643.
• Parties: BETTIS v. HARRISON et al.
• Court: United States State Supreme Court of South Carolina

195 S.E. 835

186 S.C. 352

BETTIS v. HARRISON et al.

No. 14643.

Supreme Court of South Carolina

March 16, 1938

Appeal from Common Pleas Circuit Court of Edgefield County; C.J Ramage. Judge.

Action by William N. Bettis, as life tenant under a will, against Maude A. Bettis Shear and others, as prospective heirs of plaintiff, and against E. F. Harrison, a prospective purchaser, to sell the realty in which plaintiff holds a life estate. From a decree ordering the sale, E. F Harrison appeals.

Reversed and dismissed without prejudice.

Where the proceeds of sale are ordered to be turned over to a trustee, or to a life tenant as quasi trustee, for investment, a bond with proper surety should be required for the performance and preservation of the trust.The powers of courts over trusts should be exercised with caution so as to preserve rather than to destroy them.

T. B Greneker, of Edgefield, for appellant.

J. R. Folk, Edwin H. Folk, and M. H. Mims, all of Edgefield, for respondent.

WM. H GRIMBALL, Acting Associate Justice.

This is an action brought by William N. Bettis, the life tenant under the provisions of item 6 of the will of J. F. Bettis, deceased, against certain persons alleged to constitute "the only prospective heirs and next of kin" of said William N. Bettis-that is to say, the only persons in esse who would constitute his heirs if he should die at the present time-and also any and all unborn child or children of any and all of the said parties, and also one E. F. Harrison, a prospective purchaser. The suit has been brought for the purpose of selling certain real estate referred to in item 6 of the said will and of dividing the net proceeds therefrom according to the scheme set forth in the complaint.

The complaint alleges the death of J. F. Bettis on July 23, 1929, leaving a will which has been duly proved in the probate court for Edgefield county on July 26, 1929. This will is dated May 16, 1928, and contains the following provision: "Item 6. I will, bequeath and devise the balance of the land that I own on the South side of the Columbia and Augusta Highway, after the twenty (20) acres is cut off to my daughter as described in Item 5 of my will, unto my son, William N. Bettis for and during the term of his natural life, at his death I will, devise and bequeath the same to his heirs fee simple. This land is bounded by Columbia-Augusta Highway and ditch or line that separates it from Pine House Place and Southern Railroad."

Plaintiff further alleges that he is thirty-five years of age and unmarried. He alleges that under the decision in the case of Cain v. Cain, 53 S.C. 350, 356, 31 S.E. 278, 69 Am.St.Rep. 863, he is entitled to an undivided one-half interest and estate in the fee simple value of this land.

He alleges that the income from the property is small, that the land is farm land, and that no one is willing to improve it in the present state of its title, and that it is to the best interest and advantage of all parties interested that it be sold at private sale for $78.75 per acre, and that, after paying costs, taxes, and fees, one half of the net proceeds should be paid to plaintiff and the other half invested for the remaindermen under the decree and supervision of this court.

E. F. Harrison filed his answer admitting the allegations of the complaint and asserting his willingness to accept a deed of conveyance in fee simple to the said land at the price and on the terms therein stated, provided the judgment of the Supreme Court of the state will approve the validity of the title.

The record does not disclose any answer of the guardian ad litem nor of the other defendants.

The cause was referred to a master, who found the allegations of the complaint to be true, and recommended that its prayer be granted. The testimony tended to show that the price named is fair, that the land is farm land, that plaintiff is not a farmer, and that under tenant farmers it was depreciating in value, and that it was to the interest of all parties to sell it.

A decree made on motion of plaintiff's attorneys and consented to in writing by M. H. Mims, Esquire, as guardian ad litem of the minors and as attorney for all the adult defendants except three, was signed by Hon. C.J. Ramage, Circuit Judge, at chambers on July 28, 1937, in which he confirms the finding of the master, cites with approval the case of Cain v. Cain, supra, and orders that the property be sold to E. F. Harrison, and that, after paying costs, fees, etc., the net proceeds be paid one-half to plaintiff and the remaining one-half invested under decree of court, etc.

From this decree E. F. Harrison, the proposed purchaser, alone appeals to this court. He appeals on the ground that the court erred in holding that he would obtain a good and marketable title to the land.

While this exception is general in its terms, the importance of the principles of law involved herein is such that this court should and will go fully into the merits of the case on this appeal.

The exception must be sustained. The scheme of the complaint and the plan of the decree whereby one-half of the proceeds of the sale is to be diverted from the terms of the trust do not meet the approval of this court. The court has no power to extinguish a trust in whole or in part. Had the proceeding been brought for change of investment, whereby the rights of the parties interested were to be transferred to the entire fund and the said net fund invested under the administrative protection of the court, a different question would have been presented. See the long list of cases cited in Ex parte Darby, 157 S.C. 434, at page 454, 154 S.E. 632, 639.

Ever since the case of Bofil v. Fisher, 3 Rich.Eq. 1, 55 Am.Dec. 627, the right of the court of equity upon a proper showing to sell trust property for change of investment with all interested parties in esse before the court has been unquestioned. Such a suit will bar unborn contingent remaindermen. The court by its decree acts on the property and disposes of that, and the purchaser takes a good title to the property sold. The fund arising from such a sale is managed or supervised by the court in its administrative capacity and the rights of all parties in interest are transferred from the property to the fund. The idea in such cases is that the rights of all parties are preserved by such a proceeding.

This Court approves the provision in the case of Kirkham v. First National Bank, 149 S.C. 545, 549, 147 S.E. 648, 649, that where the proceeds of sale are ordered to be turned over to a trustee, or to a life tenant as quasi trustee, for investment, that a bond with proper surety be required for the performance and preservation of the trust.

In the case of Gaines v. Sullivan, 117 S.C. 475, 109 S.E. 276, this court, on appeal, set aside a decree ordering the sale of trust property on the ground that the trust deed provided that a sale should not be made in the lifetime of Mrs. Gaines, because such condition was lawful and should be respected, and unless there was a necessity-which was not shown-the plan of the decree did not meet the approval of the court and the sale was denied.

As was stated in Kirkham v. First National Bank, supra: "This court proposes to carry out the real intention of testators and grantors, as expressed in their wills and deeds."

In Des Champs v. Mims, 148 S.C. 52, 145 S.E. 623, the court approves the law as laid down in Bofil v. Fisher, supra. It holds that the rights of remaindermen must not be extinguished, but that all rights in property must be transferred to the fund. Finding these conditions absent the court refused to confirm the order of sale.

In Cannon v. Cannon, 135 S.C. 183, 133 S.E. 556, the law in Bofil v. Fisher was again affirmed. It was again stated that the court of equity had jurisdiction to sell the interests of infants and unborn remaindermen; that the courts should proceed with caution and be satisfied of the necessity or expediency of...