Freeman v. Davis

• Decision Date: 26 January 1920
• Docket Number: 10340.
• Citation: 101 S.E. 855,113 S.C. 502
• Parties: FREEMAN ET AL. v. DAVIS ET AL.
• Court: South Carolina Supreme Court

101 S.E. 855

113 S.C. 502

FREEMAN ET AL. v. DAVIS ET AL.

No. 10340.

Supreme Court of South Carolina

January 26, 1920

Appeal from Common Pleas Circuit Court of Greenwood County; Frank B Gary, Judge.

Action by Victoria Freeman and others against William C. Davis and others. Decree for plaintiffs, and defendants appeal. Affirmed.

Following is the circuit court's decree referred to in opinion:

This is an action for the recovery of certain real estate particularly described in the complaint herein. The action was properly triable before a jury, but, as the only question in the case seemed to be one of law rather than of fact, the case was by agreement tried on the equity side of the court.

There is little, if indeed there is any, dispute as to the facts of the case. They may be briefly stated as follows:

Bazzel Davis and William Davis owned a tract of 367 1/2 acres of land as tenants in common. Some time prior to the death of Bazzel Davis they had a parol partition of the land and Bazzel Davis entered into possession of one part of it and William Davis entered into possession of the other part. At that time the household of Bazzel Davis consisted of his wife and defendant William C. Davis, who was a nephew. Bazzel Davis had no children. On the 16th day of October 1890 Bazzel Davis died, leaving of force his will which made the following disposition of his property:

"My will is that all of my just debts and funeral expenses shall by my executor hereinafter named be paid out of my estate, as soon after my death as by them shall be found convenient.

I give devise and bequeath to my beloved wife, Jane C. Davis, all of my personal property which I now own, or may own at my death and also all of my real estate that I now own or may own at my death and all money that I may have at my death, to have and to hold the same to her during the term of her natural life.

And it is my will that at the death of my beloved wife, Jane C. Davis, the whole of my estate shall become the property of my brother, William Davis, provided my brother, William Davis shall within six months after the death of my wife pay to my nephew, William C. Davis, the sum of three hundred dollars in money."

In the year 1913 William Davis died, leaving as his heirs at law and distributees the plaintiffs, who in due course of time partitioned his portion of the land among themselves. Jane C. Davis, the widow of Bazzel Davis, died about four years afterwards in November, 1917, but prior to her death she conveyed the tract of land of which Bazzel Davis died seized and possessed to the defendants William C. Davis and Tocoa Pinson, and they held it after her death and are now in possession.

Within six months after the death of Jane C. Davis the heirs at law of William Davis tendered to William C. Davis $300 and demanded possession of the premises, which was refused. The said amount is now deposited subject to the acceptance of Wm. C. Davis, should he conclude to accept it. Then they brought this action for the recovery of the land.

Plaintiffs' Claims.

The claim of the plaintiffs is based upon the last clause of the will wherein it is provided that upon the death of Jane C. Davis the said estate shall become the property of William Davis, provided William Davis shall within six months after the death of the testator's wife pay to William C. Davis the sum of $300. The plaintiffs claim that, as heirs at law of William Davis, they have the right to perform this condition; in other words, they say that the devise actually vested a title in William Davis, subject to a charge of $300 in favor of William C. Davis, or, if this is not true, that it was devised to William Davis on a condition which was to be performed subsequent to the vesting to title, and that therefore title vested in William Davis on the death of Bazzel Davis subject to a subsequent condition.

Defendants' Claim.

The defendants William C. Davis and Tocoa Pinson claim that the will devises the land to William Davis upon the performance of a condition precedent; in other words, before William Davis took anything under the will, he was required to perform the condition upon which it was given to him, that is, the payment of $300 to William C. Davis, and, since Wm. Davis died before the life tenant Jane C. Davis, the condition was impossible of fulfillment, and became void.

It is apparent from the claims of the parties that the controlling question involved in this case is whether the condition is a condition precedent or a condition subsequent or a simple...