Byrd v. King

• Decision Date: 19 January 1965
• Docket Number: No. 18295,18295
• Citation: 140 S.E.2d 158,245 S.C. 247
• Parties: R. P. BYRD, Jr., Appellant, v. Mrs. W. L. KING et al., Respondents.
• Court: South Carolina Supreme Court

Page 158

140 S.E.2d 158

245 S.C. 247

R. P. BYRD, Jr., Appellant, v. Mrs. W. L. KING et al., Respondents.

No. 18295.

Supreme Court of South Carolina.

Jan. 19, 1965.

Dusenbury, Dusenbury & McKenzie, Florence, for appellant.

McEachin, Townsend & Zeigler, Willcox, Hardee, Houck, Palmer & O'Farrell, Florence, Fulmer, Barnes & Verner, Columbia, for respondents.

MOSS, Justice.

R. P. Byrd, Sr., died testate on March 9, 1928, leaving of force and effect his will dated January 13, 1928, which said will was duly admitted to probate in Florence County on March 15, 1928. Generally, the will of the testator leaves his real property to his wife, Martha Byrd for life, and after her death, in trust for his two sons, George S. Byrd and R. P. Byrd, Jr., with various contingent remainders over after the death of each of the two sons. The tract of land with which we are here concerned is described as the 'Home Place' and is a part of a larger tract of land owned by the testator which contained 1,349 acres. The 'Home Place' contains 889 acres but several places in the record it is described as containing 900 acres, more or less. This tract was devised by the testator to trustees after the death of his wife for the use and benefit of R. P. Byrd, Jr., for and during the term of his natural life, and upon his death the devolution of title is fully set forth in said will.

The will appointed J. R. Lawrence and W. C. Law as executors thereof, and also as trustees for George S. Byrd and R. P. Byrd, Jr. These trustees never actually functioned as such, but upon the completion of the administration of the estate of R. P. Byrd, Sr., Mrs. Martha Byrd, the wife of the testator having died in January, 1936, and J. R. Lawrence, one of the trustees named, having died, W. C. Law, the surviving trustee, petitioned the court to be discharged from the trust and for the appointment of other trustees. It appears that by an order of the Court of Common Pleas, dated March 1, 1940, that J. W. Parker, Sr. and George M. McCown were appointed as trustees in the place and stead of the former trustees, with all the rights, powers and privileges, and subject to all the terms, conditions and restrictions contained in the will of R. P. Byrd, Sr., deceased. This was done with the consent and approval of R. P. Byrd, Jr.

Mrs. Martha Byrd, the wife of the testator, until her death in January, 1936, occupied the entire tract of land containing 1,349 acres, and after her death, each of the sons took over, subject to the trust provisions of the will, his separate part of his father's lands. R. P. Byrd, Jr. endeavored to farm the 'Home Place' but without success.

R. P. Byrd J., after his unsuccessful effort to farm the 'Home Place', was employed in various capacities, including work for the Master in Equity of Florence County, the State Highway Department, Sinclair Refining Company, and others, Sometime in 1942 he moved with his family to Florida and has since been living there.

It appears that on June 12, 1936, that R. P. Byrd, Jr., entered into a lease agreement with D. S. McCarthy and G. C. Chandler for a part of the 'Home Place' containing 100 acres. This tract is refered to as the 'Fish Pond Tract' and is described as containing 75 acres, more or less. This lease did not expire until January 1, 1950. On October 5, 1936, R. P. Byrd, Jr., conveyed his interest in the 'Fish Pond Tract', described as containing 75 acres, together with a 65 acre tract including the 'home site' to his three minor children, Joanne Byrd, R. P. Byrd, III, and Edward Byrd. These tracts are all a part of the 889 acre tract known as the 'Home Place'. R. P. Byrd, Jr., was, on November 3, 1937, appointed general guardian of these three minor children. They are all now sui juris.

On October 27, 1945, R. P. Byrd, Jr., assigned his right to the beneficial interest in the income from the 'Home Place' to J. W. Parker, Sr., and George McCown for a period of ten years, upon their promise to pay him annually the sum of Four Hundred ($400.00) Dollars.

R. P. Byrd, Jr., on May 30, 1950, for a consideration of Four Thousand Five Hundred ($4,500.00) Dollars, conveyed all of his interest in the 'Home Place' to Mamie McCown, the wife of George M. McCown. Following the description of the property as is contained in said deed, is a paragraph which reads as follows:

'It is understood that the grantor herein and this instrument of writing sells, transfers and assigns to the grantee any and all of the rents and profits which he might have title to from the above described premises pursuant to the last will and testament of R. P. Byrd, and the grantor hereby directs for the rest of his natural life for the trustees or their successors in office to turn over to the grantee herein any and all rents and profits of whatsoever benefits he might be entitled to from the above described premises.'

Mrs. Mamie McCown died testate on August 29, 1954 and, by the terms of her will, she devised all of her real estate to her husband, George M. McCown. Her right to the beneficial interest in the 'Home Place' for the life of R. P. Byrd, Jr., was listed as an asset of her estate and valued at Three Thousand Five Hundred ($3,500.00) Dollars. Her estate was fully administered and her executor discharged on May 31, 1956. Her interest in the income from the Byrd lands passed under the terms of her will to George M. McCown.

George M. McCown died testate on June 24, 1956, and listed among the assets of his estate is the beneficial interest in the 'Home Place' for the life of R. P. Byrd, Jr. It was again valued at Three Thousand Five Hundred ($3,500.00) Dollars. His estate was fully administered and his executor discharged on August 6, 1957. The interest of the testator in the Byrd lands passed under his will to his children, who have received the income from the Byrd lands since the settlement of the George M. McCown estate.

This action was commenced by R. P. Byrd, Jr., the appellant herein, on October 31, 1960. The complaint alleges two causes of action: (1) An action to set aside a deed given by the appellant to Mamie McCown conveying all of the rents and profits which he might have title to from the tract of land known as the 'Home Place'; and (2) To require the surviving trustee, J. W. Parker, Sr., and the heirs of the deceased trustee, George M. McCown, to render an accounting to their cestui que trust, the appellant herein, of all of their actions and all of the amounts due from rents and profits since 1940. The answer of the respondents, who were heirs at law of George M. McCown and Mamie McCown, and J. W. Parker, Sr., as surviving trustee for the R. P. Byrd lands, sets forth: (1) a general denial; (2) a denial that there was any further accounting to be made to the appellant in connection with the Byrd lands and an averment that the deed given by R. P. Byrd, Jr., is valid, and the estates of Mamie McCown and George McCown, having been fully administered, the appellant having made no claim against these estates, has no cause of action against the heirs at law, devisees or distributees thereof; (3) that more than six years have elapsed since the death of Mamie McGown and the appellant is barred by the statute of limitation, and that more than ten years having elapsed since the execution of the deed, the appellant is barred by laches and the statute of limitation; and (4) a denial that the appellant was entitled to any further accounting, other than those previously rendered him. All of the other respondents having only contingent or derivative interest in this case file pro forma answers.

This cause was, by a general order of reference, referred to the Master of Florence County. The Master found all of the issues in this cause in favor of the respondents. The appellant filed fifty-two exceptions to the Master's report and a hearing was held thereon before the Honorable James A. Spruill, Jr., Judge of the Fourth Judicial Circuit. On October 4, 1963, an order was filed confirming the Master's report and making it the judgment of the Circuit Court with the statement that 'The Report of the Master is amply justified by the facts and the law which are stated at length therein.' This appeal followed.

An action for the cancellation of a deed for fraud is equitable in nature. Mills v. Little, 158 S.C. 17, 155 S.E. 148. An action for an accounting is also equitable in nature. Wise v. Picow, 232 S.C. 237, 101 S.E.2d 651. This being true, we are bound by the rule that in an equitable case the findings of fact by the Master, concurred in by the Circuit Judge, are conclusive upon this Court and will not be disturbed unless it is shown that such findings are without evidentiary support or against the clear preponderance of the evidence. Carsten v. Wilson, 241 S.C. 516, 129 S.E.2d 431. It was particularly within the province of the Master to pass upon the credibility of witnesses whom he saw and heard. Hamilton v. Palmetto Properties, Inc., 237 S.C. 140, 116 S.E.2d 12.

The first question for determination is whether the deed from the appellant to Mrs. Mamie McCown was a valid one, she being the wife of George M. McCown, one of the trustees here involved. It is the position of the appellant that a purchase of trust property by a wife of the trustee is improper and voidable by the cestui que trust even though the transaction is free from actual fraud and supported by a fair consideration.

It has been held that the estate or interest of a cestui que trust in trust property, may ordinarily be alienated or encumbered by the cestui que trust without the assent of the trustee, where such interest or estate is separable, and the cestui que trust is not under any disability. However the assignee may receive only such interest and right as the cestui que trust has in the trust. 90 C.J.S. Trusts § 193; Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465; Brown v. Fletcher, 235 U.S. 589, 35 S.Ct. 154, 59 L.Ed. 374; ...