Covar v. Cantelou

• Decision Date: 22 April 1886
• Citation: 25 S.C. 35
• Parties: COVAR v. CANTELOU. SAME v. BUTLER.
• Court: South Carolina Supreme Court

25 S.C. 35

COVAR v. CANTELOU.

SAME v. BUTLER.

Supreme Court of South Carolina.

April 22, 1886

1. A testator gave a portion of his residuary estate unto and to the use of his executor and his heirs, " in trust for the sole and separate use of T. [a married woman], free and absolute from any rights of her husband, for and during the term of her natural life, and upon her death to be equally divided amongst her children and their heirs forever." Under order of the court, a part of this fund was invested in a tract of land, and afterwards, upon the petition of T. and her substituted trustee (her children then in esse not being parties), a portion of this land was sold by order of court. Held , that the rights and interest of these children in this land so sold were not divested by the proceeding to which they were not parties. Moseley v. Hankinson , 22 S.C. 323.

2. Whether these children were necessary parties to the proceeding under which money of the trust estate was invested in this land, need not be determined; for if they were, and are not therefore bound by the investment, still they could follow their funds into the land, and this they have elected to do by this action.

3. This case distinguished from Farr v. Gilreath 23 S.C. 502.

4. Upon the death of T., the trusts were executed and the fee in the land vested absolutely in the children of T.; and they having the legal title, could maintain this action in their own names to recover this land.

Before WALLACE, J., Edgefield, October, 1884.

The appeal was from the following decree, omitting its statement of facts:

The legal questions arising upon the facts in this cause were discussed with striking ability at the hearing. The case, I think, lies within a narrow compass. These plaintiffs certainly had an interest in the land sold by the trustee and although alive at the time of the proceedings to procure authority to sell, were not made parties. If the statute of uses executed the use declared by the will, it was executed in the mother and children, and they had a legal estate. If the statute did not execute the use, the legal title remained in the trustee, and they had an equitable interest. I may say that in my opinion the statute did not execute the use for two reasons. One is that by the terms of the will of Ryan, a use was limited upon a use, and the statute will not execute such a use. Such a limitation was conclusive evidence that the testator intended that the legal title should remain in the trustee. The other reason is, that the trust was created for the benefit of a married woman. These children, then, at the time of the sale had an equitable interest in the land which could not be defeated by proceedings to which they were not parties.

This principle, according to my construction of the cases, has been expressly decided in the recent case of Leroy v. Charleston , 20 S.C. 71. In that case, land was sold by order of the court, when certain persons, grandchildren of testator, held to be contingent remaindermen, were not made parties to the proceedings, nor was the heir of the trustee, who held the legal title, a party. The court, after referring to and quoting from Bofil v. Fisher (3 Rich. Eq. , 1) as to the power of the court to sell the estates of infants and remaindermen, whether vested or contingent, and referring also to Van Lew v. Parr , 2 Rich. Eq. , 331, and to Trescot v. Smyth , 1 McCord Ch. , 301, uses the following language: " We think the grandchildren in this case, at least those whose names and residence are known, should have been made parties. We think, too, that the proceeding was defective, in the fact that the heir at law of the trustee was not summoned." In that case the sale was held invalid to convey a perfect title upon two grounds: First, that certain infant contingent remaindermen were not parties; and, second, because the holder of the legal title was not a party.

In this case the holder of the legal title was before the court, as was the life tenant. All that they had was sold and enjoyed by the purchaser, but the rights of these remaindermen could not be sold under proceedings to which they were not parties, while they were living and known. The purchaser held all he bought, as the trustee and life-tenant held all they had subject to the rights of these plaintiffs. Upon the death of Mrs. Tillman, the fee would have passed to these plaintiffs if the land had not been sold. That was their right under Ryan's will. Under the principles above stated, that right remains unaffected by the sale made, and when Mrs. Tillman died, the fee in the land sold vested absolutely in these plaintiffs.

It is therefore ordered, adjudged, and decreed, that the plaintiffs are entitled to the possession of the land described in the complaint. It is further ordered, that plaintiffs have leave to apply at the foot of the decree for such orders as may be necessary to carry it out.

Messrs. Sheppard Bros. , for appellant, who also submitted argument of Mr. B. W. Bettis, jr. , deceased.

Messrs. S. B. Griffin and Gary & Evans , contra.

OPINION

MR JUSTICE MCIVER.

By the eleventh clause of the will of John Ryan, who died many years ago, he directed as follows: " It is my will and desire that all the rest and residue of my estate, both real and personal, be divided into fourteen equal shares, and I devise and bequeath one of the said shares to each of my grand-nephews [naming them], to them and their heirs forever; and as to the remaining nine shares, I give, devise, and bequeath the same to my executors hereinafter named, and to the survivors and survivor of them, and to the heirs of the survivor, to the use of my said executors and the survivors and survivor of them, and to the heirs of the survivor, in trust, nevertheless, for the sole and separate use of my grand-nieces, Peggy G. Smith, wife of _____ Smith, Mary E. Tillman, wife of Benjamin Tillman [and seven others, naming them], free and absolute from any rights or control of any husband they may now have or may hereafter have, one of said shares to each of my said grand-nieces, for and during the term of her natural life, and upon her death to be equally divided amongst her children and their heirs forever, the legal representatives of any child of my grand-nieces who may have died to be entitled to the same share as his or her parents would have been if living."

The testator appointed three executors, of whom Christian Breithaupt alone qualified and assumed the duties of the trust. It seems that the share of Mrs. Mary E. Tillman, under the above clause of the will, amounted to seventeen hundred and thirty-five dollars, and that, by an order of the Court of Equity, eight hundred...