Green v. Green

• Decision Date: 08 November 1899
• Citation: 34 S.E. 249,56 S.C. 193
• Parties: GREEN et al. v. GREEN et al.
• Court: South Carolina Supreme Court

34 S.E. 249

56 S.C. 193

GREEN et al. v. GREEN et al.

Supreme Court of South Carolina

November 8, 1899

McIver C.J., dissenting.

Appeal from common pleas circuit court of Richland county; Ernest Gary, Judge.

Action by Frederick L. Green and others against Lucy J. Green and others. From a decree dismissing the complaint, plaintiffs and defendant Frederick G. De Saussure appeal. Modified and remanded.

McIver C.J., dissenting.

The master's report, referred to in the opinion, is as follows:

"To the Presiding Judge, Court of Common Pleas, Richland County, Fall Term, 1898: The above-stated case was referred to me by an order of Hon. O. W. Buchanan, presiding judge of this court, dated November 12, 1896, 'to take the testimony upon all the issues in the cause, and report the same, together with my findings of fact therein, to this court.' On May, 26, 1898, I held a reference under said order, attended by the attorneys of record in said cause. Mr Jervey, on part of the defendant Lucy J. Green and the other defendants who adopt her answer, moved to amend their answers, as set out in a paper received and designated therein as a 'notice of a motion for amendment.' I granted this motion, and allowed the amendment proposed in said paper, which I herewith report, with the indorsement thereon. The defendant Lucy J. Green made offer of judgment in writing, which was filed with me, as master, as a part of the record in this case, which was accepted by all parties as a proper offer under the Code. Subsequent to said date I held several other references, attended by the attorneys of record; took all the testimony offered on all the issues in said cause, which I herewith report, marked 'Y,' together with my findings of fact thereon:

(1) All the parties named in the summons have been duly served, and all of them have appeared and answered. The infant defendants were all properly represented by guardians ad litem duly appointed. The guardian ad litem appointed for the infant defendant, Frederick G. De Saussure, having died another guardian ad litem was appointed for that purpose.

(2) Mrs. Lucy P. Green departed this life on or about the 6th day of April, 1864, leaving a last will and testament whereby she devised here residence, a house and lot in the city of Columbia, situate at the corner of Bull and Senate streets, containing one and a half acres, to 'my daughter Lucy J. Green, *** together with all the furniture and things appurtenant in the house and kitchen. *** This devise is made to her for life, for her sole and separate use, not subject to the debts, contracts, or control of any husband with whom she may intermarry. At her death I devise and bequeath the same to my four sons, Allen J. Green Halcott P. Green, Frederick L. Green, and John S. Green, and the children of my daughter Lucy, if she should have any living at her death, they taking among them one share; if she leaves none living at her death, then to my four sons.'

(3) At her death the four sons and her daughter Lucy were all living. Since that time, of the sons, John has died intestate, unmarried, and without issue; Allen J. Green has died intestate, leaving surviving him his widow, Sally S. Green, and his children, Allen J. Green, Walter Green, and Martha C. Green, plaintiffs, who reside in Alabama; Halcott P. Green has died intestate, and leaving surviving him his children, Allen J. Green, Sally C. Heyward, Eliza G. Singleton, Mary Caroline Jervey, and Halcott P. Green, who reside in South Carolina; and Frederick L. Green has died intestate, and leaving surviving him his children, Frederick L. Green, William G. Green, G. Washington Pringle, Allen G. Green, Walter G. Green, and Frederick G. De Saussure, a minor grandson, child of deceased daughter, Lucy D. De Saussure, who reside in South Carolina. Letters of administration have been duly issued as follows: On estate of Allen J. Green, to Frederick L. Green; on estate of Halcott P. Green, to Halcott P. Green; and on estate of John S. Green, to Halcott P. Green. Miss Lucy Green survives, and has never been married, and soon after the decease of the testatrix she went into possession of the devise and

bequest.

(4) In November, 1877, the dwelling devised was destroyed by fire, and no dwelling house or other structure has been rebuilded on the said lot. There was a policy of insurance on same, which was paid to Miss Lucy J. Green, the life tenant, by the insurance company, in the sum of $3,000. This payment was made about one month after the fire. She invested the said amount in a call loan to the Charlotte, Columbia & Augusta Railroad Company, with security at ten per cent. interest payable monthly. Her four brothers (who, with her children, should she have any, are the remainder-men) had full knowledge of the payment to her of the insurance, and the loan of it to Allen J. Green, committee of John S. Green, hereinafter referred to.

(5) I further find: That in the meantime one of the brothers, remainder-man of John S. Green, was some time in the summer of 1877 declared a lunatic, and that the defendant Allen J. Green, of South Carolina, was duly appointed his committee. That, on taking charge of the estate of John S. Green, he found it very much embarrassed. This estate consisted of the property described in the complaint as the 'brickyard,' containing 418 acres, more or less, and one lot in the city of Columbia, situate at the corner of Bull and Pendleton streets, containing one acre, more or less, and certain inconsiderable personal property. That the debts due by the estate of John S. Green aggregated something over $7,000.

(6) That on taking charge of said estate the said Allen J. Green, committee, petitioned the court of probate of Richland county, and obtained an order authorizing him to sell such of the personal property as he found it necessary to sell, and to borrow on the real estate such sum as he might find it necessary to relieve the estate of its embarrassments. Efforts in this direction were made by said committee unsuccessfully until in January, 1878, when he applied to the defendant, Lucy J. Green.

(7) That upon said application the said Miss Lucy J. Green lent to the said Allen J. Green, the committee of John S. Green, lunatic, the sum of $3,200, and $3,000 of which was the said insurance money paid to Allen J. Green upon Miss Green's order by Col. Palmer, president of the Columbia & Augusta Railroad Company; the remainder, $200, her own funds, derived from other sources.

(8) That the said Allen J. Green, committee of the said John S. Green, paid out the said insurance money so borrowed as follows: First, to Miss Lucy J. Green, $300, the interest in advance at ten per cent. per annum on said $3,000, and $2,200 to Bachman & Youmans, attorneys for Mazyck and Henneman, who held the first lien on the Brickyard tract, under a decree of foreclosure in the case of John A. Henneman v. Allen J. Green, as committee of John S. Green, lunatic, and others; and, next, the sum of $500 to N. Barnwell, representing John T. Rhett, attorney for E. J. Scott & Sons and R. J. Brownfield, on judgments which they held against said John S. Green.

(9) That the said sum of $3,200 was secured to the said Lucy J. Green by two notes of said Allen J. Green, committee,--one for $2,700, dated the 14th day of March, 1879,--and by the assignment to her of their interest by Henneman and Mazyck in the said decree, to the extent of $2,200, the amount paid them as aforesaid, and also by the assignment to her of the said Scott and Brownfield judgment in full by the owners thereof. The remaining sum of $500 was secured to Miss Lucy J. Green by the note of said Allen J. Green, committee of John S. Green, dated March 14, 1878, payable one day after date, with interest from date payable annually, and a mortgage on the Pendleton street lot, property of said John S. Green. The said amount of said decree of foreclosure was assigned by Henneman and Mazyck to Miss Green, with the express provision that the remaining portion of said decree still due should be a first lien on the mortgaged property, and that Miss Lucy Green's interest therein should be junior to said interest of said Henneman and Mazyck, and costs.

(10) This loan of money derived from the insurance company the brothers of Miss Green had full knowledge of, and made no objection thereto.

(11) I further find that Allen J. Green, committee of John S. Green, having failed, in the fall of 1878, to borrow more money on the security of real estate of John S. Green, to pay the pressing claims against the estate of his lunatic, Messrs. Bachman & Youmans, representing the decree of foreclosure of the mortgages of Mazyck and Henneman, which constituted senior liens upon the brickyard, advertised the same for sale on January 6, 1879.

(12) That on that day, upon a fair and open sale, the property was knocked down to, and sold and conveyed to, Miss Lucy J. Green, in fee, for $2,500. She was represented at the sale by her brother, Mr. Halcott P. Green. Mr. Allen J. Green in no way represented her interests. The purchaser, Miss Green, complied with the terms of sale, and received a deed of conveyance. She paid $2,500 cash, which was disbursed as follows:

To costs of attorney, clerk, and referee .............................	$118 25
To costs of sheriff ....................................................	48 90
To Bachman & Youmans, in full of amount due them under the decree ...	2,305 59
To Miss Lucy J. Green, balance from purchase ...........................	27 26
	---------
	$2,500 00

Miss Green receipted for the $27.26, but I also find that in addition she paid $176.66 taxes on the Brickyard tract, which, under decree, was ordered first paid.

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