Dumas v. Carroll

• Decision Date: 15 July 1919
• Docket Number: 10248.
• Citation: 99 S.E. 801,112 S.C. 284
• Parties: DUMAS v. CARROLL et al.
• Court: South Carolina Supreme Court

99 S.E. 801

112 S.C. 284

DUMAS v. CARROLL et al.

No. 10248.

Supreme Court of South Carolina

July 15, 1919

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memminger, Judge.

Action by M. Dumas against Thomas W. Carroll and another. Decree for plaintiff, and defendants appeal. Reversed.

The following is the agreed statement of facts and decree appealed from:

On August 1, 1867, one S. N. Hart conveyed to Robert Fleming the premises 305 King street, and bond and mortgage was given for two-thirds of purchase price, which was satisfied of record March 17, 1869. On July 20, 1868, he executed to John F Meyer, trustee, a deed to this property which was duly recorded, wherein he recited the purchase from S. N. Hart and terms thereof, that the cash portion and first installment on bond was paid out of moneys belonging to his wife, Anna Dora Fleming, and that thereby a resulting trust was created in said premises for Anna Dora Fleming; that in order to declare the trust which resulted in her favor conveys the property to John F. Meyer, his heirs and assigns forever in trust, for the sole separate use, benefit, and behoof of Anna Dora Fleming, and her heirs, to permit her to collect the rents and profits thereof to and for her sole use; also, in trust that said trustee or his heirs or successors in the trust shall convey the premises to such persons and for such estates as Anna Dora Fleming, by her last will and testament, shall direct; also, in trust if it be advisable for purpose of paying mortgage debt or change of investment, to sell the property upon written request of Anna Dora Fleming, and reinvest proceeds; usual provision for substitution of trustee.

So far as the records show, Anna Dora Fleming did not consent to this trust.

In 1868 the property was returned for taxes in the name of Anna Dora Fleming, and so continued until her death in 1909. The trustee, John F. Meyer, died many years ago, and no other trustee was ever substituted. Robert Fleming did in 1884 devising his entire estate to Anna Dora Fleming.

Anna Dora Fleming died the 28th day of March, 1909. By proceedings filed July 17, 1909, to which all of the children and grandchildren of Mrs. Anna Dora Fleming then in being were made parties, it is alleged that a press copy of the will of Anna Dora Fleming dated the -----day of December, 1899 (the original having been lost), had been, by written agreement of all of the adult parties interested under the terms of the said will, admitted to probate in the probate court of Charleston county; and confirmation thereof by the court is asked, and direction for the distribution of the estate thereunder.

Under the terms of the will so approved, the premises in question was devised as follows:

"Item VI. I give, devise and bequeath my lot of land with the buildings thereon, on the west side of King street, in the city of Charleston, in said state, at present known as No 305 King street, to my daughters, Lill D. Ellis and Anna F. Norris, born Fleming, as trustees, and the survivor of them in trust for and during the natural life of my son, Robert T. Fleming, to manage the same, and to receive and collect the rents, issues and profits thereof, and after paying the taxes, insurance and for repairs and all necessary expenses thereon, to pay over the net rents, income and profits thereof to my said son, Robert T. Fleming, for and during the term of his natural life, and upon the death of my said son, Robert T. Fleming, I give, devise and be queath the said lot of land and buildings to such child or children of my said son, Robert T. Fleming, as he shall leave living at his death in equal shares, if more than one, and if only one, the whole to that one, to have and to hold the same to them, him or her, their, his or her heirs, absolutely and forever: Provided, however, that if any child or children of my said son, Robert T. Fleming, shall have died before him, leaving issue which shall be living at his death, such issue shall represent his, her, or their respective parents or parent, and take per stripes the share or shares, proportion or proportions which such parent or parents would have taken, respectively, under this item of my will if living at the death of my said son, Robert T. Fleming; to have and to hold the same to them, him or her, their, his or her heirs absolutely and forever. Should my said son, Robert T. Fleming, however, die leaving no child or children, nor the issue of any predeceased child or children living at his death, then and in such case, on the death of my said son, Robert T. Fleming, I give, devise and bequeath the said lot of land and buildings thereon to my daughters, Lill D. Ellis, Eveline B. Nix and Anna F. Norris, or such one or more of them as shall be living at the death of my said son, Robert T. Fleming, in equal shares, if more than one, and if only one, the whole of that one, to have and to hold the same to them, or her, their or her heirs absolute and forever: Provided, however, in this case, that if either of my said daughters shall predecease my said son, leaving issue which shall be living at his death, such issue shall represent their, his or her parent or parents and take per stirpes the share or shares, proportion or proportions, which their, his or her respective parent or parents would have respectively taken under this item of my will if living at the death of my said son, Robert T. Fleming, to have and to hold the same, to them, him or her, their, his or her heirs, absolutely and forever."

In this proceeding Robert T. Fleming claimed that there was other disposition of this property made by his mother more favorable to him, which claim was not established; but in order to settle the estate and avoid litigation, there was a family agreement for a cash allowance to Robert T. Fleming out of the residuary estate amounting to $150 from the share of each adult and $130 from the shares of the minors, and title to the premises was confirmed in the trustees, and same was managed under the terms of the will for the benefit of Robert T. Fleming bytrustees appointed by the court.

In July, 1915, there was placed on record in Book O 27, page 289, Register of Mesne Conveyance office for Charleston County, a deed of conveyance to this property from Anna Dora Fleming to Robert T. Fleming, dated April 18, 1906.

On March 31, 1917, proceedings were filed in the court of common pleas for Charleston county in re the same proceedings as above referred to, Ex parte Robert T. Fleming against the same defendants, and such additional ones as comprised the descendants of Anna Dora Fleming as had been born subsequent to the preceding suit, and all of the defendants were properly served--the defendants were all the parties then in case, who might, under the terms of the will of Anna Dora Fleming, or under the trust deed in question, have or claim an interest in the premises.

F. K. Myers was the then acting trustee under the will of Anna Dora Fleming, having been substituted by order of court for the original trustees named in the will. He was not made a party to these proceedings. He was, however, the master in equity for Charleston county, to whom the case was referred by order of court, and therefore had notice of the proceedings.

The petitioner alleged that the said premises had been conveyed to him in fee by his mother, Anna Dora Fleming, by deed dated the 18th day of April, 1906, and the discovery and recording of said deed as above set forth in Book O 27, at page 288, and that he was the owner in fee by reason of said deed, and prayed that the court would modify its former decree and confirm his title in fee thereto.

Guardians ad litem were appointed for minors, and all defendants answered.

The defense was raised by one of the defendants in this proceeding that if said Robert T. Fleming ever had any interest in said premises he is now estopped and barred from claiming any right, title, or interest in the same, he having agreed to a settlement and accepted valuable consideration; that the said Robert T. Fleming has no title deed to the premises, and if he has that it is a forgery.

The case was referred to F. K. Myers, Esq., who was the then acting trustee, who filed a report recommending confirmation of title in fee in the said Robert T. Fleming upon certain conditions; that is, that the said Robert T. Fleming should first pay to the parties in interest a cash consideration in view of the amount allowed him out of the residuary estate of his mother in the original proceeding, fixed in each case at $300. All of the then minors in the original suit having become of age except one, the amount so agreed upon was paid over to the adults, and the amount to be paid to the minor was paid into court, and by the master paid over to her duly appointed guardian.

By decree dated October 2, 1917, and consented to in writing by all the adult parties individually, and their counsel, title in the said premises was confirmed in the said Robert T. Fleming in fee absolute, free of all trusts.

The said premises were then conveyed by the said Robert T. Fleming to the plaintiff, M. Dumas, on the 15th day of February, 1918, for valuable consideration.

On April 9, 1918, a written contract, based on valuable consideration, was entered into for the sale of the said premises by M. Dumas to T. W. Carroll, for $13,600 net.

Opinion and Order for Specific Performance.

Upon the agreed statement of facts in this case, the court decides that, while the purchaser's objections to the title are apparently well taken as to form in substance they cannot be sustained. The court thinks the trustee was a necessary party to the action, wherein the deed was established cutting off the remaindermen...