Carmichael v. Heggie, 2886.
| Decision Date | 28 September 1998 |
| Docket Number | No. 2886.,2886. |
| Citation | 506 S.E.2d 308,332 S.C. 624 |
| Parties | In Re M.B. CARMICHAEL, Plaintiff, v. Jane HEGGIE, Defendant. Ex Parte Jane B. HEGGIE, Respondent, v. The Heirs at Law, devisees or distributees of William Boyd Carmichael, deceased; Doris W. Carmichael, a/k/a Doris Wiggins Carmichael; M.B. Carmichael, a/k/a Milton B. Carmichael; Mark Aaron Carmichael, a minor over fourteen (14) years; Daniel Scott Carmichael, a minor under the age of fourteen (14) years; any and all unknown owners or heirs as parties or devisees or distributees of William Boyd Carmichael, deceased; all other persons unknown claiming any right, title or interest in or lien upon the real property described in the Third-Party Complaint herein; any unknown adults being as a class designated as John Doe; and any unknown minors or persons under other legal disability or persons serving in the military having or claiming to have any right, title, interest or lien upon or to the subject property as a class designated as Richard Roe, Of Whom Doris W. CARMICHAEL is the Appellant. |
| Court | South Carolina Court of Appeals |
Marvin P. Jackson, Florence, for appellant.
Carl A. Ellsworth, of Seigler, Earle & Ellsworth, Columbia, for respondent.
Guardian Ad Litem: John D. McInnis, Jr., Dillon.
Lois Eargle McMillan, of Law Offices of Daniel H. Shine, Dillon, for Guardian Ad Litem John D. McInnis, Jr.
Doris Carmichael appeals a determination by the trial court that she cannot presently exercise a power of appointment to convey a fee simple interest in a tract of farm land to her son. We affirm.1
In his last will and testament, William Boyd Carmichael named his wife Doris executor of his estate and gave her a life estate in his undivided half-interest in an eighty-acre farm. The will also granted Doris a general power of appointment through which she could appoint the property to any appointee, including her estate, in her last will and testament. If she did not exercise the power of appointment in her will or if she predeceased William, the property was to transfer to William's then living grandchildren. The will also gave Doris, in her capacity as executor, the right to sell assets. William died, and his will was probated July 22, 1985. Doris survived her husband.
By deed dated October 14, 1994, Doris transferred her interest in the tract of land to her son Milton B. Carmichael. On December 6, 1994, she executed a will exercising the power of appointment in favor of Milton. In her will, she stated she believed the transfer had occurred with the October deed. Doris also executed a contract with Milton agreeing not to change her will in exchange for his caring for her in her old age.
Milton initiated an action for partition against Jane Heggie, who owned the other half-interest in the property. In her answer and counterclaim, Heggie questioned Milton's ownership interest in the land and requested the court interpret William's will to quiet title in the land. A guardian ad litem was appointed to protect the interest of the minor and unborn potential heirs.
The trial court held Doris could exercise the power of appointment only through her will upon her death, when the will was probated. It further found that Doris's authority as executor of William's estate did not expand her power of appointment. The deed from Doris to Milton, therefore, conveyed only a life estate per autre vie and no other legal interest.
1. Doris argues the trial court erred in holding she had not exercised the power of appointment in favor of Milton. She asserts that through the execution of her will, the execution of the contract to will, and the transfer of her interest in the property, she had conveyed a fee simple interest to Milton. We disagree. Generally a contract to make a will is enforceable, provided it possesses all the essential elements of a legal contract. Caulder v. Knox, 251 S.C. 337, 162 S.E.2d 262 (1968).2 "One who contracts to will property in effect parts with his rights to act inconsistent therewith and in effect reserves to himself a life interest only." Id. at 346, 162 S.E.2d at 267 (1968).
We are unaware of any South Carolina cases to date specifically considering the effect of a contract to will on a testamentary power of appointment. The Restatement (Second) of Property, however, provides as follows:
A donee of a power of appointment not presently exercisable cannot contract to make an appointment in the future that is enforceable by the promisee. Though the promisee cannot obtain damages or the specific property if the promise is not performed, the promisee may obtain restitution for value that the promisee gave for the promise from the person who received the value.
Restatement (Second) of Property § 16.2 (1986).
The rationale behind this rule is to fulfill the donor's intent that the selection of the appointees be made "in the light of the circumstances that may exist on the date the power becomes exercisable." Restatement (Second) of Property § 16.2 cmt. a (1986). Furthermore, as the Restatement explains, "A contract to appoint in a certain manner made prior to the date the power becomes exercisable, if valid, would defeat the donor's intent." Id.3
We adopt the Restatement rule and hold Doris, as the donee of a...
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CHAPTER 9 A REVIEW OF OWNERSHIP INTERESTS IN LANDS AND OWNERSHIP ENTITIES
...§ 35 (2011). [103] Id. [104] 34 Tex. Jur. 3d Estates § 21 (2011). [105] 28 Am. Jur. Estates § 218 (2011). [106] Carmichael v. Heggie, 332 S.C. 624, 506 S.E.2d 308 (1998). [107] A life estate may also be measured by the life of a specified third person. This is called a life estate pur autre......
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CHAPTER 10 A REVIEW OF OWNERSHIP INTERESTS IN LANDS AND OWNERSHIP ENTITIES
...§ 35 (2011). [103] Id. [104] 34 Tex. Jur. 3d Estates § 21 (2011). [105] 28 Am. Jur. Estates § 218 (2011). [106] Carmichael v. Heggie, 332 S.C. 624, 506 S.E.2d 308 (1998). [107] A life estate may also be measured by the life of a specified third person. This is called a life estate pur autre......