Black v. Harman
Decision Date | 18 December 1923 |
Docket Number | 11381. |
Citation | 120 S.E. 705,127 S.C. 359 |
Parties | BLACK v. HARMAN ET AL. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Newberry County; H. F Rice, Judge.
Action by Frances C. Black against Harriet F. Harman and others. From an order overruling a demurrer to the complaint, the named defendant appeals. Reversed.
Eugene S. Blease and Dominick & Workman, all of Newberry, for appellant.
Geo. B Cromer, of Newberry, and B. B. Hare, of Saluda, for respondent.
The following statement appears in the record:
On the 23d of February, 1923, his honor the circuit judge filed the following order:
The defendant appealed upon the following exceptions:
"(1) That his honor, the presiding judge, erred in not sustaining the demurrer of the defendants upon the ground that the complaint does not state facts sufficient to constitute a cause of action for the reason that the plaintiff has no such interest in the income, rents, and profits of the land described in the complaint, as is alleged in the complaint.
(2) That his honor, the presiding judge, erred in holding that the land, and the possession of the land, was impressed with a trust in favor of the children, to the effect that the mother and children are tenants in common in equal shares and proportions in the income, rents, and profits of the land, it being respectfully submitted that, under the will of Frederick H. Dominick, the children are not tenants in common in equal shares and proportions in the income, rents, and profits of the land.
(3) That his honor, the presiding judge, erred in holding that the land was impressed with a trust under the will and the children entitled to equal shares and proportions in the income, rents, and profits of the land, it being respectfully submitted that, if the land were impressed with a trust, it was not such a trust as the court can take cognizance of and enforce, in that (a) there are no words showing the precise nature of the trust intended to be impressed; (b) there are no mandatory words in the will showing the creation of a trust, or the manner in which the alleged trust is to operate; (c) the beneficiaries are not named; (d) the interest which each beneficiary is to take is not shown by the will; (e) the proportion to which each is entitled is not shown by the will."
The ruling of his honor the circuit judge, which gives rise to this appeal, is as follows:
It was not the intention of the circuit judge to decide the rights of the parties in the remainder to the children, for the reason that the possession of the land was vested in the mother for life, and was to be used by her for her own benefit and that of her children, so long as she lives; and therefore that there could be no merger of the remainder and the other estates created by the will, so as to execute the use devised to the mother and her children.
The question, therefore, is, whether there was a merger of the life estate and the equitable estates of the...
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