Ex parte Yown

• Decision Date: 08 August 1882
• Citation: 17 S.C. 532
• Parties: EX PARTE YOWN.
• Court: South Carolina Supreme Court

17 S.C. 532

EX PARTE YOWN.

Supreme Court of South Carolina.

Aug. 8, 1882.

1. A deed conveyed land to “S., her heirs and assigns (for and during her natural life, should she die without issue) … to have and to hold the said tract unto the said S., her heirs and assigns for and during her natural life as aforesaid. Should she die without bodily issue, the said tract to revert to the children of D., deceased. But should the said S. have a child or children, then the said land to rest in them absolutely.” S. died without issue. Held, that, by this deed, S. took an absolute estate, which, at her death, intestate, passed to her heirs at law.

2. This deed purported to have been made in pursuance of a prior agreement, and such agreement recited that S., the widow of one D., and the five sons of D. by a former marriage, had agreed to divide the property, giving to “S. one-sixth in lieu of all claim of dower, the property coming to her under said agreement, she hereby agrees that she will take good care of, and if she should die without bodily heirs then she hereby agrees and covenants that, at her death, all the remaining property shall revert back to the heirs of D”; provided, the said sons took care of her while she lived if she became helpless or needy. The widow having become helpless and needy and not being assisted by the sons, Held, that the condition stipulated as that upon which the land was to revert not having been performed, the fee remained in S. under this agreement, and it mattered not that the sons were ignorant of her needs.

3. There was nothing in this agreement or deed in the nature of a covenant to stand seized to uses.

4. There is nothing in the agreement that would authorize the Court to reform the deed because of accident or mistake, the agreement itself showing an intention that the fee should not be reduced to a life estate except upon a contingency which never happened.

5. The declarations of S. as to the nature of her estate amounted to no more than the expressions of an opinion, and were, therefore, inadmissible as evidence against her heir at law.

Before FRASER, J., Anderson, October, 1881. The opinion states the case.

Messrs. Featherston & Benet, B. F. Whitner, for appellants.

Mr. J. L. Tribble, contra.

The opinion of the Court was delivered by

MR. JUSTICE MCIVER.

John L. Davis died intestate in 1863, leaving as his heirs at law five sons, children of a former marriage, and his widow, Sallie Davis. The heirs being all of age, determined to close up the estate without administration, and, for this purpose, on August, 1863, entered into an agreement, which was reduced to writing, whereby agents were appointed to sell the estate and divide the proceeds; but one-sixth, embracing the land about which this controversy arises, does not seem to have been sold by these agents. By this agreement, the widow, upon certain conditions therein stated, agreed to share equally with the children, and to take her share for life, with remainder to the other heirs, in case she should die without issue. The material terms of this agreement are expressed in the following language: “The said Sallie Davis, the widow, agreeing to receive a child's share of said estate, in lieu of all claim of dower in said estate, the property coming to her under said agreement, she hereby agrees she will take good care of, and if she should die without bodily heirs, then she hereby agrees and covenants that, at her death, all the remaining property shall revert back to the legal heirs and representatives of the before-named John L. Davis, deceased; provided, the children of the said deceased shall, on their part, faithfully carry out their part of said agreement-they, the before-named Wm., T. W., J. H., T. G., and G. W. Davis, for and in consideration of the said Sallie Davis, the widow, allowing the share coming to her as aforesaid to revert back to them at her death, do covenant and agree that, should the said Sallie Davis, by any unforeseen accident, become helpless or needy in her lifetime, they bind themselves, their heirs and assigns, to take care of her while she lives.”

In pursuance of this agreement, the five sons of the intestate, on August 26th, 1863, executed a deed to Sallie Davis for the tract of land, which (or rather the proceeds of its sale) is the subject-matter of controversy. This deed, after referring in its preamble to the above-mentioned agreement, proceeds in the following words: “In consideration of the before recited agreement, and in consideration of the sum of twelve hundred and ten dollars to us paid by Sallie Davis, have bargained, granted, sold, and by these presents do grant, bargain, sell, and release unto the said Sallie Davis, her heirs and assigns (for and during her natural life, should she die without issue) all that plantation, etc., containing one hundred and twenty acres more or less, bounded … To have and to hold the said tract of land unto the said Sallie Davis, her heirs and assigns, for and during her natural life as aforesaid. Should she die without bodily issue, the said tract of land to revert to the children of the said John L. Davis, deceased. But should the said Sallie Davis have a child or children, then the said land to rest [ sic] in them absolutely forever.”

Sallie Davis died intestate in 1880, without issue, leaving as her only heir at law her sister, the petitioner, Polly Yown, and administration of her estate was duly committed to the other petitioner, J. L. Brock. After her death, the sons of J. L. Davis commenced an action for partition of the tract of land conveyed by the above-mentioned deed to Sallie Davis, making all the heirs of J. L. Davis parties, but not making the heir of Sallie Davis a party. Under this proceeding the land has been sold, and the proceeds are now in the hands, or under the control of the Court. At this stage of the case, Polly Yown filed her petition, claiming the proceeds of the sale as heir of Sallie Davis; and J. L. Brock filed his petition, asking that so much of said proceeds as may be necessary for the payment of the debts of Sallie Davis should be paid over to him as her administrator.

The Circuit Judge held that Sallie Davis had an estate in fee simple in said tract of land, but inasmuch as the petitioners did not seek to set aside the sale or disturb the purchaser in his possession, but were content to go upon...