Hubbard v. Beverly

• Decision Date: 17 July 1941
• Docket Number: 15298.
• Parties: HUBBARD v. BEVERLY et al.
• Court: South Carolina Supreme Court

15 S.E.2d 740

197 S.C. 476

HUBBARD v. BEVERLY et al.

No. 15298.

Supreme Court of South Carolina

July 17, 1941

J E. Dudley and Tison & Miller, all of Bennettsville, for appellants.

J K. Owens, of Bennettsville, for respondents.

BAKER Justice.

This action was commenced in the Court of Common Pleas for Marlboro County on December 26, 1939, for the purpose of partitioning a thirty-acre tract of land situate in said County. By answer the respondents raised the issue of title thereto. The respondents, A. Z. Beverly, James Beverly and Bertha Beverly, are the children of E. B. Beverly, and the appellants herein are the grandchildren of the said E. B. Beverly.

On February 15, 1911, E. B. Beverly executed a deed for the thirty-acre tract of land involved in this action, which conveyed this parcel of land to his wife, Sara Jane Beverly, in fee simple. This deed was recorded in the office of the Clerk of Court for Marlboro County on April 21, 1913. On August 4, 1928, E. B. Beverly executed his will, by the terms of which he undertook to devise to his wife, Sara Jane Beverly, a life estate in said tract of land and the fee in remainder to the respondents herein. On July 27, 1934, E. B. Beverly died. Thereafter, his will was admitted to probate and A. Z. Beverly qualified as executor.

On June 17, 1938, Sara Jane Beverly (the wife) died, leaving in force her last will and testament which was dated December 11, 1925. A. Z. Beverly, her son, qualified as executor. By her will, Sara Jane Beverly made no mention whatsoever of the real estate involved in this action and disposed only of personal property thereby .

The cause was by agreement of counsel referred for the taking of testimony by a special referee which testimony consisted of numerous written instruments, the pertinent contents of which have been heretofore briefly set forth, and the verbal testimony of A. Z. Beverly and J. K. Owens, Esquire, which briefly recapitulated discloses that A. Z. Beverly acted as executor of his father's and mother's wills; that E. B. Beverly and Sara Jane Beverly, his father and mother, lived together on the tract of land involved in this action from the time that E. B. Beverly bought it with the exception of a period of about twelve years during which period they lived away from this tract of land but later returned and resided thereon until they died; that he, A. Z. Beverly, had made a diligent search for the deed, the record of which was admitted in evidence by agreement of counsel, but had been unable to find it among his mother's papers; that E. B. Beverly had managed and exercised full control of this thirty-acre tract of land throughout his entire life; that J. K. Owens, Esquire, prepared the wills of E. B. Beverly and Sara Jane Beverly; that Sara Jane Beverly and E. B. Beverly were present and gave him the information by which he prepared the will of E. B. Beverly and after preparing E. B. Beverly's will it was read over in the presence of E. B. Beverly and Sara Jane Beverly; that Sara Jane Beverly made no objection to the contents of the will of E. B. Beverly at the time it was prepared and read to them; that J. K. Owens prepared the will of Sara Jane Beverly and she thereby only disposed of personal property.

The testimony having been taken and reported to the Court, Judge M. M. Mann, on March 7, 1941, passed an order holding that the doctrine of estoppel was applicable to the facts disclosed by the testimony and that the heirs-at-law, as such, of Sara Jane Beverly were thereby barred of any right, title and interest in and to the property.

There are six exceptions to this order, but generally they raise only one question, to wit: Is the doctrine of estoppel applicable to the facts of this cause? A solution of this query will dispose of the issues involved in this action.

The doctrine of estoppel applies if a person, by his actions, conduct, words or silence which amounts to a representation, or a concealment of material facts, causes another to alter his position to his prejudice or injury. The citation of authority for this well established postulate of law would only be a work of supererogation.

In the case of Ott v. Ott et al., 182 S.C. 135, 140, 141 188 S.E. 789, 792, Mr. Justice Bonham, now Chief Justice, quoted with approbation from 10 R.C.L. 697, 698, the following: "'The final element of an equitable estoppel is that the person claiming it must have been misled into such action that he will suffer injury if the estoppel is not declared. That is, the person setting up the estoppel must have been induced to alter his position, in such a way that he will be injured if the other...