Dibble v. Dibble, No. 18533

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLIONEL K. LEGGE; MOSS; BRAILSFORD
Citation149 S.E.2d 355,248 S.C. 165
PartiesWortham W. DIBBLE, Individually and as Trustee, etc., Annie Leak Dibble Bradley and Agnes Dibble Morris, Respondents, v. Thomas W. DIBBLE, etc., et al., Appellants.
Decision Date14 July 1966
Docket NumberNo. 18533

Page 355

149 S.E.2d 355
248 S.C. 165
Wortham W. DIBBLE, Individually and as Trustee, etc., Annie
Leak Dibble Bradley and Agnes Dibble Morris, Respondents,
v.
Thomas W. DIBBLE, etc., et al., Appellants.
No. 18533.
Supreme Court of South Carolina.
July 14, 1966.

[248 S.C. 167]

Page 356

Marshall B. Williams, Orangeburg, Henry Hammer, Columbia, for appellants.

James A. Moss, Orangeburg, Thomas Kemmerlin, Jr., Robert J. Thomas, Columbia, for respondents.

[248 S.C. 168] LIONEL K. LEGGE, Acting Associate Justice.

In this action, commenced by service of a summons and petition the petitioners, respondents here, sought to be adjudged the owners, in equal shares of a three-fourths beneficial interest in two parcels of land in Orangeburg County that had been conveyed by their uncle, Samuel Dibble, who was also their stepfather, to the respondent Wortham W. Dibble as trustee for their brother, the appellant Thomas W.

Page 357

Dibble. The petition further prayed termination of the trust and accounting and distribution to the petitioners of their alleged interests in the trust estate. The County Judge, to whom as Special Referee the cause was referred, found against the petitioners' contentions and recommended that the petition be dismissed. From a circuit court decree overruling that report Thomas W. Dibble has appealed.

On January 25, 1949, the parties to this action, Wortham W. Dibble, Annie Leak Dibble Bradley, Agnes Dibble Morris, and Thomas W. Dibble, who were all of the children then living of their widowed mother, Mrs. Annie L. W. Dibble, executed an agreement which, after reciting a contemplated settlement with their said mother concerning certain properties in reality theirs, but as to which she had for many years exercised control and held title, whereby she would convey some of said properties to them and retain others, proceeded to provide that thereafter 'any property, money or thing' exceeding in value twenty-five dollars that should be received by any of said children from their said mother either during her life or upon her death would be shared by them equally; that semi-annually each would report to Wortham W. Dibble as their agent all things of value received from their mother; and that he would keep a record of the items so received and reported to him.

[248 S.C. 169] Under date January 26, 1949, Mrs. Dibble and her four children executed a tentative agreement for the division of the numerous properties whereby, in addition to certain personal assets, there would be allotted to her certain parcels, and to them other parcels, of real estate. The contemplated division appears to have been effected under date May 9, 1949, by two deeds: In one, Mrs. Dibble conveyed to Wortham W. Dibble, Annie Leak Bradley and Agnes D. Morris, and to Wortham W. Dibble as trustee for Thomas W. Dibble, twenty-seven parcels of real estate; in the other, Wortham W. Dibble, Thomas W. Dibble, Annie Leak Bradley and Agnes D. Morris conveyed to her twenty-two parcels. Under the same date Thomas W. Dibble and Wortham W. Dibble executed a trust agreement, reciting that Thomas had requested Wortham to hold as trustee for him his undivided one-fourth interest in the properties conveyed by Mrs. Dibble's deed just mentioned; that Wortham also held certain other real and personal property as trustee for Thomas; and declaring that all of said properties were so held by Wortham as such trustee, with power to possess, control, manage, mortgage, lease, sell and otherwise dispose of the same and invest and reinvest the proceeds as he might deem advisable, paying the net income to Thomas quarterly, with power in the trustee to invade the corpus if and when necessary for the support of Thomas and his family. The agreement further provided that the trustee should have discretionary power at any time to convey to Thomas all or any part of the trust assets, should be entitled to reimburse himself for all necessary expenses incurred in the administration of the trust, and should in addition be entitled to a commission of two and one-half per cent on all sums collected and a like percentage of all sums disbursed, commissions due and collectible in any calendar year to be considered as waived unless taken and accounted for in that year.

Under date May 9, 1949, there was also executed, by Wortham W. Dibble, Annie Leak Dibble Bradley, Agnes Dibble Morris and Thomas W. Dibble an agreement supplemental[248 S.C. 170] to that of January 25, 1949, to the effect that the agreement of January 25 should also apply 'to all gifts' received by any of them from their uncle, Samuel Dibble, during his lifetime, with the following exceptions:

'That the sum of $500.00 given to Thomas W. Dibble and the sum of $1,000.00 promised to Wortham W. Dibble for the benefit of Thomas W. Dibble shall not be included or charged against the said Thomas W. Dibble, and, further, that the said

Page 358

Thomas W. Dibble, in recognition of services to be rendered to the said uncle shall not be charged with any sum advanced to him for services rendered unless the said sum exceeds the amount of $600.00 in a six-months period and that, in this event, the excess over the sum of six hundreds (sic) received in any six-months period shall be so charged against the said Thomas W. Dibble.'

The agreement of May 9 contained also the following provision:

'It is further agreed by all the parties that nothing in this agreement shall relate to any bequest or devise that the said Samuel Dibble shall make under and by virtue of his last will and testament and that none of the parties hereto, in connection with these agreements, shall be charged with any gift or bequest received from the said uncle through his last will and testament.'

On September 20, 1950, Mrs. Dibble, whose husband had died in 1917, married his brother, the said Samuel Dibble. She was then eighty years of age; he was eighty-one.

On February 1, 1951, Samuel Dibble conveyed to Wortham W. Dibble as Trustee for Thomas W. Dibble, two tracts of land in Orangeburg County: (1) the 'Swamp Land', containing about 166 acres; and (2) the 'Still Place', containing about 475 acres. The deed, under seal, recited that it was made 'in consideration of the sum of Five ($5.00) Dollars, and partial appreciation of years of unselfish service by Tom W. Dibble in the management of my lands and other affairs'. South Carolina documentary[248 S.C. 171] stamps were affixed to it in the amount of $30.00; United States documentary stamps, in the amount of $18.50. The vital issue here is whether this conveyance was, or was not, a gift within the purview of the family agreement of January 25, 1949, as supplemented by that of May 9, 1949, and therefore to be shared by Thomas with his brother, Wortham, and his sisters, Mrs. Bradley and Mrs. Morris. The Special Referee and the Circuit Judge having reached opposite results on this issue, and the cause being in equity, it becomes our duty, to the extent that its solution involves challenged findings of fact, to review the evidence and draw from it our own conclusion. That duty does not require that we disregard the findings below, or that we ignore the fact that the Special Referee, who saw and heard the witnesses, was in better position than either this court or the circuit court to evaluate their credibility, nor does it relieve the appellant of the burden of convincing this court that the judgment appealed from was contrary to the preponderance of the evidence. Twitty v. Harrison, 230 S.C. 174, 94 S.E.2d 879; Simonds v. Simonds, 232 S.C. 185, 101 S.E.2d 494; Chapman v. Scott, 234 S.C. 469, 109 S.E.2d 1; Watson v. Wall, 239 S.C. 109, 121 S.E.2d 427.

As pointed out in the circuit court decree family settlements are favored by the courts and have generally been upheld against arguments that consideration for them was lacking. But in the present case neither the validity nor the propriety of the agreements of January 25 and May 9, 1949, is in question. The issue, as before stated, is simply this: Was the conveyance by Samuel Dibble a gift to Thomas within the purview of those agreements? For the answer to this question we must look to the deed itself, and to the intention of the parties to the family agreements as gathered from their testimony and from the circumstances surrounding the execution of the agreement of May 9, 1949, and the execution by Samuel Dibble, on February 1, 1951, of the deed before mentioned.

[248 S.C. 172] We do not think that the answer is to be found, as the Special Referee's report suggests, in the rule expounded in All v. Prillaman, 200 S.C. 279, 20 S.E.2d 741, 159 A.L.R. 981, and the cases there cited, to the effect that where

Page 359

a deed is under seal a consideration is thereby imported, and, in the absence of fraud, the grantor and those claiming under him will not be allowed to show that it was in fact without consideration. For the issue of consideration vel non here does not involve the validity of the deed as between the parties to it or those claiming under them; it is concerned only with the status of the conveyance in relation to the family agreements. It seems to us, therefore, that the deed in question bearing a seal, reciting a consideration, and having...

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9 practice notes
  • Wilson v. Dallas, No. 27227.
    • United States
    • United States State Supreme Court of South Carolina
    • May 8, 2013
    ...or to promote the settlement and distribution of an estate. Duncan v. Alewine, 273 S.C. 275, 255 S.E.2d 841 (1979); Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355 (1966); see also In re Estate of Yeley, 959 N.E.2d 888, 894 (Ind.Ct.App.2011) (“[T]he settlement agreement is a contractual agre......
  • Wilson v. Dallas, Appellate Case No. 2009-142286
    • United States
    • United States State Supreme Court of South Carolina
    • February 27, 2013
    ...or to promote the settlement and distribution of an estate. Duncan v. Alewine, 273 S.C. 275, 255 S.E.2d 841 (1979); Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355 (1966); see also In re Estate of Yeley, 959 N.E.2d 888, 894 (Ind. Ct. App. 2011) ("[T]he settlement agreement is a contractual a......
  • Flair Broadcasting Corp. v. Powers, 89 Civ. 2528 (KC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 16, 1990
    ...to extrinsic evidence if the intention of the parties can be determined from the terms of the agreement itself. E.g., Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355, 364 (1966); Beard v. Ryder/P-I-E Nationwide, 733 F. Supp. 185 Inc., 292 S.C. 250, 355 S.E.2d 872, 875 (Ct.App.1987). Furtherm......
  • Murphy v. Hagan, No. 21307
    • United States
    • United States State Supreme Court of South Carolina
    • September 30, 1980
    ...its meaning must be determined by its contents alone. Bruce v. Blalock, 241 S.C. 155, 127 S.E.2d 439 (1962); Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355 (1966). The terms of the contract at issue specifically state that the monthly payment is to be considered Appellant's contention that ......
  • Request a trial to view additional results
9 cases
  • Wilson v. Dallas, No. 27227.
    • United States
    • United States State Supreme Court of South Carolina
    • May 8, 2013
    ...or to promote the settlement and distribution of an estate. Duncan v. Alewine, 273 S.C. 275, 255 S.E.2d 841 (1979); Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355 (1966); see also In re Estate of Yeley, 959 N.E.2d 888, 894 (Ind.Ct.App.2011) (“[T]he settlement agreement is a contractual agre......
  • Wilson v. Dallas, Appellate Case No. 2009-142286
    • United States
    • United States State Supreme Court of South Carolina
    • February 27, 2013
    ...or to promote the settlement and distribution of an estate. Duncan v. Alewine, 273 S.C. 275, 255 S.E.2d 841 (1979); Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355 (1966); see also In re Estate of Yeley, 959 N.E.2d 888, 894 (Ind. Ct. App. 2011) ("[T]he settlement agreement is a contractual a......
  • Flair Broadcasting Corp. v. Powers, 89 Civ. 2528 (KC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 16, 1990
    ...to extrinsic evidence if the intention of the parties can be determined from the terms of the agreement itself. E.g., Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355, 364 (1966); Beard v. Ryder/P-I-E Nationwide, 733 F. Supp. 185 Inc., 292 S.C. 250, 355 S.E.2d 872, 875 (Ct.App.1987). Furtherm......
  • Murphy v. Hagan, No. 21307
    • United States
    • United States State Supreme Court of South Carolina
    • September 30, 1980
    ...its meaning must be determined by its contents alone. Bruce v. Blalock, 241 S.C. 155, 127 S.E.2d 439 (1962); Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355 (1966). The terms of the contract at issue specifically state that the monthly payment is to be considered Appellant's contention that ......
  • Request a trial to view additional results

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