Free v. Sandifer

• Decision Date: 12 February 1925
• Docket Number: 11689.
• Parties: FREE ET AL. v. SANDIFER ET AL.
• Court: South Carolina Supreme Court

126 S.E. 521

131 S.C. 232

FREE ET AL. v. SANDIFER ET AL.

No. 11689.

Supreme Court of South Carolina

February 12, 1925

Appeal from Common Pleas Circuit Court of Bamberg County; Thos. S Sease, Judge.

Action by W. E. Free, as executor of the last will of Mrs. Sallie Sandifer, deceased, and others, against W. T. Sandifer and another. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.

E. H Henderson, of Bamberg, for appellants.

Brown & Bush and Carter, Carter & Kearse, all of Bamberg, for respondents.

W. C COTHRAN, Special Judge.

Mrs. Sallie Sandifer departed this life on August 8, 1923, leaving a will, the third paragraph of which is the subject of this suit, and which is as follows:

"I give, devise and bequeath unto my two grandchildren, Howard B. and Thelma L. Sandifer, children of my deceased daughter, Eva, tract No. 1 as shown by plat made by B. F. Folk, surveyor, containing one hundred thirty-eight and 3/10 acres, more or less, for and during the term of their natural lives and from and immediately after their death, to their children living and in case they should leave no children living at their death, then the said tract of land to become the property of my other children and grandchildren living at that time."

After making provision for her four children, Viola, Wesley, Leon, and Wayne Sandifer, she then provided for her grandchildren as appears in the quoted paragraph. Howard B. Sandifer, one of the grandchildren, died on July 10, 1923, but because of the critical condition of Mrs. Sallie Sandifer, the testator, she was never informed of this fact, and died in ignorance thereof.

The personal property being insufficient to pay the debts of the deceased, this action was brought alleging that one-half of tract No. 1 was owned by Viola, Wesley, Leon, Wayne, and Thelma Sandifer, heirs of the testatrix, as tenants in common; that the said tract be divided, one-half being set apart to Thelma, under the terms of the will, and the other half be sold for the payment of the debts of the testatrix. It is conceded that the land may be divided in kind.

Thelma Sandifer, one of the defendants, answered the complaint, alleging that she and her brother, Howard, were joint tenants of the entire tract, and that upon the death of Howard the doctrine of survivorship applied to the extent of making Thelma the sole owner under the terms and conditions of the will. Did it create a joint tenancy as between Thelma and Howard, or did Mrs. Sandifer die intestate as to the half devised to Howard, he having predeceased her?

The cause was referred to the acting master of Bamberg county, who reported that the testatrix died intestate as to Howard's half, and that said half should be sold for the payment of debts, etc. Upon appeal from this report, his honor, Judge Sease, reversed the same, holding the creation of a joint tenancy, and from this decree an appeal was taken to this court.

The doctrine of joint tenancy with its attending feature of survivorship dates back to the early English law, and was for many years highly favored in England. In later years it has lost much of its favor in England, and practically all of it in the United States. By the act of 1791, now section 5332 of the Code, joint tenancies were largely abolished in South Carolina. However, this act does not apply to the present case, for the reason that the interest of Howard never vested. See Ball v. Deas, 2 Strob. Eq. 24, 49 Am. Dec. 651, and Herbemont v. Thomas, Cheves, Eq. 21. These two cases, relied upon by the circuit judge as being controlling of the question now under consideration, will be referred to later in this opinion.

That the modern tendency is to restrict the creation of joint tenancies and to abolish the idea of survivorship is clearly shown in all of the text books, and in the following citations: 7 R. C. L. 813, 33 C.J. 905, 23 Cyc. 485. Practically all of the states have enacted legislation against the doctrine of survivorship, as will appear from the foregoing citations. As in all other questions involving the construction of wills, resort must be had to the will itself in an effort to discover the intention of the testator as to whether or not a joint tenancy was intended; such intention, however, to be governed by recognized rules of interpretation.

In the case of Telfair v. Howe, 3 Rich. Eq. 235, 55 Am. Dec. 637, Chancellor Dargan discussed this question in a very able manner, as the following extracts from his opinion will reveal:

"The estate in joint tenancy presents some of the most artificial rules of subtle distinctions of the ancient common law. It

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