Callaham v. Robinson

• Decision Date: 01 March 1889
• Citation: 9 S.E. 120,30 S.C. 249
• Parties: CALLAHAM v. ROBINSON. SAME v. CALLAHAM et al.
• Court: South Carolina Supreme Court

9 S.E. 120

30 S.C. 249

CALLAHAM v. ROBINSON.

SAME v. CALLAHAM et al.

Supreme Court of South Carolina

March 1, 1889

Appeal from common pleas circuit court of Abbeville county; W. H WALLACE, Judge.

Proceedings in the probate court for dower, by Eliza Ann Callaham against Mary Jane Robinson, and by the same against Basil Callaham and others. Demandant appealed to the circuit court from a decree for defendants. The decree was affirmed, and she now appeals to this court.

Perrin & Cothran, for appellant.

Benet & Cason, for respondents.

McGOWAN J.

Basil Callaham, Sr., departed this life on June 5, 1887. He left a widow, Eliza A. Callaham, (the demandant,) and, by a former marriage, a daughter, Mary J., wife of Hugh Robinson, and three children of a predeceased son, John W. Callaham (Carrie Chapman, Basil Calliham, Jr., and Julia Callaham.) The lands of the deceased consisted of several small tracts as follows: (1) The home place, 186 acres; (2) The Burton place, adjoining the homestead, 30 acres; (3) Scuddy tract now Loundsville, 269 acres; (4) part of the Stuckey tract, 104 acres; (5) the Shaw parcel, 60 acres; and (6) Haddon tract, 125 acres,--making in the aggregate about 774 acres. By his last will and testament he provided as follows: First, after making a handsome bequest to his wife of such personal property as was necessary to make her comfortable, he devised his lands as follows: "I give and bequeath to my beloved wife, Eliza A. Callaham, my home tract of land, containing 186 acres; also a tract of land adjoining, known as the 'Burton' tract, containing about 30 acres,--to have and to hold, to use and possess during her natural life or widowhood; but in the event that she should marry, or if she lives single until she dies, in either case it is my will that the above-named land be sold by my executors, *** and the proceeds of the sale of the land be divided in the following manner: one-third to her or her heirs, one-third to the children of my son, John William Callaham, now dead, and one-third to my daughter, Mary Jane Robinson, or, if she be dead, to her children that may be living, all to share and share alike." The testator gave to the children of John W., the "Scuddy" place, 268 acres, to be sold at such time and in such manner as his executors might think for the best interest of the children; the proceeds to be equally divided among the children, all to share and share alike. He also gave to Mrs. Robinson three small tracts--the Stuckey parcel, 104 acres; the Shaw parcel, 60 acres; and the Haddon tract, 125 acres--during her natural life; and at her death to be sold by the executors, and the proceeds equally divided between her children, share and share alike. The will directed that the remainder, if any, should be equally divided between the children of John and Mrs. Robinson. The widow, Eliza A., was named one of the executors, and qualified as such. She accepted the provisions of the will in her favor, and afterwards instituted these proceedings in the probate court of Abbeville,--one case against the children of John W. deceased, and the other against Mary J. Robinson,--demanding dower in all the lands of which her husband died seised and possessed, except what was given to herself. The probate judge, after argument, held that, although the testator did not expressly declare that the provision made for his wife was in lieu and bar of dower, the whole will, properly construed, shows that such was his intention; its provisions being manifestly inconsistent with the claim of dower in the lands devised to the children of John W. and to Mrs. Robinson; citing the case of Hair v. Goldsmith, 22 S.C. 566, with the remark that as to the intention of the testator "that case was not as strong as this." He dismissed both cases. The demandant appealed to the court of common pleas, and Judge WALLACE affirmed the decree, and dismissed the appeal. The case is now before us on appeal, upon the following exceptions: "(1) That the probate judge erred in admitting the appraise bill of the estate of Basil Callahan, deceased, in evidence; (2) in holding that the claim of dower is manifestly repugnant to the intention of the testator; (3) in holding that the provision made for the widow in the will was in lieu and bar of dower; (4) in dismissing demandant's petitions; (5) in holding it to be apparently true that the bequest to petitioner is greater than she would have received if testator had died intestate; (6) in holding that this is a case where the widow was called upon to make her election; (7) in stating that the devise to Mrs. Robinson was 191 acres, whereas the will devises to her 289 acres," etc. As to the last exception we think there must be some mistake, as we have not been able to find in the case any such statement as that attributed to the probate judge in reference to the number of acres devised to Mrs. Robinson.

It seems that the record of administration of the testator's estate in the office was considered by the probate judge to be in evidence, showing that the demandant had accepted and taken possession of the provision made for her by the will including also the appraisement of the property of the estate, from which it appeared that the value of the lands given to the three devisees (the children of John W. representing their father) were about equal, the value of the widow's share being slightly greater than that of either of the children. But it nowhere appears that the probate judge rested his decision on that evidence, but, on the contrary, upon the provisions of the will itself, considered as a whole. The right to dower is undoubtedly a clear legal right, but it is peculiar, in this: that it is inchoate until the husband's death. While it is beyond the control of the husband, he may give property as a substitute for it, which, if accepted, bars the right. If the testator expressly declares that a provision for his wife is intended to be "in lieu and bar" of her dower in his lands, there can be no difficulty, for a case of election has been created, and the widow may take the provision made for her or dower, but not both. When, however, there is no such express declaration, the intention can only be reached by construction, and, as that must depend upon the peculiar provisions of each will, there has been much discussion, and possibly some difference of opinion, as to what is necessary to exclude the right. While each case must be decided upon its own facts, we think the proper rule to be observed in determining the question was stated by the chief justice in the case of Hair v. Goldsmith, 22 S.C. 566, cited both by the probate and circuit judge. He said: "There is no express declaration in the will that the devise to his wife was in lieu and bar of dower. The question, then, is presented, did the testator intend this devise as such bar? This must be determined by the fact whether the two are so manifestly repugnant that they cannot stand together. This being determined, the intention of the testator is reached, and must govern," etc. Now, applying this principle, how does this case stand? It seems to us that the provisions of the will, considered together, show that the testator had in his mind a settled scheme for the division of his property among his wife and two children, which was based on the view (as he was providing a substitute for the dower) that he had the absolute right to dispose of the property as his own,--the whole interest in it,--without taking further account of his wife's inchoate right to dower in his lands; and, this being the case, the operation of such right now would inevitable derange and destroy that scheme by increasing the share he intended for his widow, and reducing those he intended for his children, respectively. It will be observed that the testator disposed of, by his will, several small tracts of land, aggregating in quantity about 774 acres. The third of this (the full extent of the dower interest) would be about 258 acres. The will shows that, besides a handsome legacy of personalty, the testator gave his wife the homestead and the little "Burton Place" adjoining, (216 acres,) which of course carried the improvements on the homestead. This was given for life or widowhood. If she married again, or at her death without marriage, in either case the lands were to be sold, and the proceeds distributed, one-third to her or her heirs forever, and the same to each of his children. Is it not quite clear, without any reference to extrinsic evidence, that this provision alone, nearly one-third in mere acres, was at least equal in value to her dower interest; and, if so, does not the character of the property given, (the homestead,) as well as the manner in which it was given, indicate unmistakably that he intended the provision to be a substitute for, and in lieu and bar of, her legal right to dower in his lands? We cannot doubt it. As to the exception that the "appraise bill" was not competent evidence as to the value of the different parcels of land, it will suffice to call attention to the familiar doctrine that a decree will not be reversed if it can be sustained upon any ground which appears in the record. Coleman v. Chester, 14 S.C. 286; Weinges v. Cash, 15 S.C. 44. It will be further noticed that the lands devised to the children of John W., were directed to be sold "at such time and in such manner as my executors may think will be for the best interest of my children." It was clearly the intention of the testator that the whole lands should be sold for the best interest of the children, and not what might remain after one-third by metes and bounds had...