Du Bose v. Kell

• Decision Date: 23 May 1911
• Citation: 71 S.E. 371,90 S.C. 196
• Parties: DU BOSE v. KELL et al.
• Court: South Carolina Supreme Court

71 S.E. 371

90 S.C. 196

DU BOSE v. KELL et al.

Supreme Court of South Carolina

May 23, 1911

Appeal from Common Pleas Circuit Court of Chester County; Ernest Moore, Special Judge.

"To be officially reported."

Action by Sarah F. Du Bose, in her own right, and as administratrix of Susan C. Kell, deceased, against John A. Kell and others. From a judgment denying relief, plaintiff appeals. Affirmed.

The following is the decree referred to in the opinion:

"This cause came on for hearing at the November term, 1909, of the said court, and was then submitted for determination of the equitable issues; but, further time for additional argument having been granted, the final submission was not made until a recent date. The cause was heard upon the report of the referee and numerous exceptions by the defendants.

"In the reports of the appeals herein in 72 S.C. 215, 51 S.E 692, and 76 S.C. 314, 56 S.E. 968, a view may be had of the preliminary proceedings in the case prior to the reference of the equitable issues. In these proceedings it was adjudged to be proper to determine the equitable issues before a hearing should be had upon any legal issues of fact herein as to the legal title to any of the lands here in question triable by jury. Before proceeding directly to the consideration of the report and exceptions, a brief statement of uncontroverted and conceded facts will be helpful by way of preface. The issues made by the pleadings need not be stated in detail, but reference will be made to them from time to time as occasion may require.

"The lands here in controversy consist of four tracts, situate in the county of Chester, known, respectively, as the 'Home Place,' which contains 1,300 acres, the 'Rocky Creek Place,' in which is included about 700 acres, the 'Parish Place,' consisting of 100 acres and the 'Fishing Creek Place,' embracing 400 acres. All of these tracts were formerly the property of Mrs. Jane Hemphill, who died in the year 1861, leaving of force her last will and testament, by the terms of which she devised and bequeathed to her daughter. Susan Douglas, who afterwards became Susan C. Kell, the one-third part of the residue of her estate, limiting the same to her, in the language of the sixth clause of the will, 'for the term of her natural life, for her sole and separate use, and not to be subject to the debts, contracts or control of her present or any future husband, and at her death I give and devise the same to any child or children which she may have. But in case she die without issue living at the time of her death, or if said issue should not arrive at the age of twenty-one years, then I give and devise the said portion to my daughter, Mary Hemphill. I authorize and empower my said daughter, Susan, to give, by will duly executed according to law, five thousand dollars to her present husband, or any other person she may desire, out of said portion.' By the same will testatrix gave all the rest and residue of her estate to her daughter, Mary Hemphill, in fee, and authorized and empowered her to dispose of the same to any person, by will or otherwise; 'this limitation and power to extend also to whatever she may derive from my daughter Susan's portion.' Under this will of Jane Hemphill, the said Susan C. Kell took (as her portion) the two tracts already mentioned as the Fishing Creek Place and the Parish Place, and the said Mary Hemphill took thereunder (as her portion) the aforementioned two tracts, the Home Place and the Rocky Creek Place.

"Mary Hemphill died about 1864, leaving of force her last will and testament, dated in 1862, which directed, first, the payment of her debts, and then bequeathed the sum of $10,000 to the board of directors of the Theological Seminary of South Carolina and Georgia, and devised the rest and residue of her estate to her executor in trust to pay the income thereof to her sister, Susan Douglas (afterward Susan C. Kell), for life, and the corpus to her issue, and in case of the death of the said Susan without issue, or of the death of the said issue before reaching the age of 21 years, then the said rest and residue is devised to certain other parties, strangers to this controversy. By this will James Hemphill is appointed executor, and is empowered to sell such property as is necessary to carry out its purpose and provisions.

"Mrs. Susan Douglas, having become Susan C. Kell by her intermarriage with B. E. Kell, Sr., purchased the above legacy of $10,000 bequeathed to said theological seminary by the will of Mary Hemphill, and in 1873 an action was commenced in this court by James Hemphill, as executor of Mary Hemphill, deceased, and also as executor of Jane Hemphill, against the said Susan C. Kell and her husband, B. E. Kell, and others, to which suit all the persons in any way interested in the said two estates were made parties, for the purpose of marshaling the assets and partitioning and settling the said two estates. In this suit it was determined that the said Susan C. Kell was the owner of the said legacy, and there was adjudged to be due to her thereupon by the estate of Mary Hemphill, on the 20th day of February, 1873, the sum of $15,075, and by a decree in the said cause the Home Place and the Rocky Creek Place were ordered to be sold as the property of the said Mary Hemphill for the payment of the same. These lands were so sold accordingly and were purchased by the said Susan C. Kell at such sale on December 1, 1873, and deeds for the same were thereupon duly executed to her by the proper officer of the court. It appears from the records of said cause that, after applying the proceeds of sale and all other payments, a large balance remained due upon said decree in favor of Susan C. Kell against the estate of Mary Hemphill. Under these proceedings, therefore, Susan C. Kell acquired title in fee simple to the Home Place and the Rocky Creek Place, while she then had a life estate in the Fishing Creek Place and the Parish Place under the devise contained in the will of Jane Hemphill, and she further held a judgment or decree against the estate of Mary Hemphill for whatever balance remained due upon the said legacy established in the action above mentioned. On the 20th day of November, 1880, for a consideration expressed of $2,500, Susan C. Kell conveyed to one J. H. McMurray the Fishing Creek Place, by a deed in fee simple with full warranty, and on the same day the said McMurray executed to her a mortgage thereupon to secure sealed notes to the amount of $1,500. On the 15th day of November, 1888, the said McMurray executed to B. E. Kell, Sr., the husband of Susan C. Kell, a mortgage to secure the payment of a sealed note of that date by him to said B. E. Kell, made payable in the sum of $250, and bearing interest at the rate of 10 per centum per annum. Thereafter, in December, 1892, the said J. H. McMurray conveyed the said Fishing Creek Place to the said B. E. Kell, Sr., in fee simple, with full warranty, for a consideration therein named of '$500 to me paid and in further consideration of his satisfying the balance of a mortgage covering premises hereinafter described,' the premises described being the said Fishing Creek Place. In August, 1902, B. E. Kell, Sr., the husband of Susan C. Kell, died testate, his will thereafter duly probated bequeathing and devising all his property to his wife for life, and after her death to his nephew, B. E. Kell, Jr., absolutely. Thereafter, on the 27th day of October, 1902, the said Susan C. Kell signed the paper, bearing that date, purporting to be a deed of conveyance by her to the said Dr. B. E. Kell, Jr., of a fee-simple title to the Home Place, the Rocky Creek Place, and the Parish Place. Although the execution of this paper by the said Susan C. Kell appears to have been proven before a notary public on the 29th day of October, 1902, by the affidavit of one of the subscribing witnesses, there is no evidence that it has ever been recorded. Mrs. Susan C. Kell having died on the 24th day of December, 1902, leaving no issue, and Dr. B. E. Kell, Jr., having died on October 30, 1903, but having previously conveyed all the property here in controversy to his brothers and sisters who are named as defendants herein, the present action seeking the cancellation of the deed of October 27, 1902, by Susan C. Kell to Dr. B. E. Kell, and also a partition of the four tracts of land already mentioned, was commenced in this court on the 14th day of October, 1904. At the time of the death of Susan C. Kell her heirs at law were the plaintiff, Sarah Du Bose, and the defendants, Susan A. Boylston and Eunice Cloud. This is alleged in the complaint and denied in the answer, but, whether proven or not, it was conceded at the hearing that such are the facts. A will made by Sarah C. Kell in 1885 is conceded to be inoperative by reason of the fact that the devisee of her property therein named died during her lifetime; and for that reason, amongst others, the same was never probated. It is also admitted that any interest or estate in any of the lands here in controversy which the defendants Eunice R. Cloud and Susan A. Boylston may have at any time possessed has passed by conveyance to the other defendants in this action.

"Coming now to the report of the referee upon the equitable issues in the case and considering first the questions sought to be made by the plaintiff's fifth exception, it appears clearly that this exception raises purely a question of legal title which depends upon the proper construction of the wills of Jane Hemphill and Mary Hemphill, and perhaps also upon the question of fact as to who were the heirs at law of Mary Hemphill at the time of her death or at the time of Susan C. Kell's death, and that such question of

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