McChesney v. Smith

• Decision Date: 20 July 1916
• Docket Number: 9476.
• Citation: 89 S.E. 639,105 S.C. 171
• Parties: MCCHESNEY v. SMITH.
• Court: South Carolina Supreme Court

89 S.E. 639

105 S.C. 171

MCCHESNEY v. SMITH.

No. 9476.

Supreme Court of South Carolina

July 20, 1916

Appeal from Common Pleas Circuit Court of Laurens County; Ernest Moore, Judge.

Action by Jennie A. McChesney against J. C. Smith, individually and as executor of the estate of D. C. Smith. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

Haynsworth & Haynsworth, of Greenville, and Richey & Richey, of Laurens for appellant.

Simpson Cooper & Babb and Featherstone & Knight, all of Laurens, for respondent.

HYDRICK J.

This is an action for specific performance. Plaintiff was the second wife and widow of D. C. Smith. After his death, she married McChesney. By his first wife, D. C. Smith had three children J. C. Smith, defendant herein, Mrs. Walker, and Mrs. Anderson. The last named predeceased her father, leaving her husband and two children, who are infants. D. C. Smith died in February, 1912, leaving two wills, in both of which J. C. Smith was appointed executor. One of the wills, presumably the last made, was probated, in common form, in February, 1912, and J. C. Smith qualified as executor. By this will, testator gave his widow one-fourth of his personal estate, and his home place, said to contain 150 acres. His disposition of the residue is not material here. Testator did not own all of the home place. In part of it his children and grandchildren had some interest, and it was so adjudged in this suit against the widow for partition.

In January, 1913, J. C. Smith and Mrs. Walker demanded proof of the will in solemn form, in which proceeding its validity was attacked for incapacity of testator and undue influence upon him, and it was finally annulled on those grounds. While this contest was pending in the probate court, plaintiff and defendant undertook to effect a settlement, so as to end the litigation. They met, their attorneys being present, and a statement of the assets and liabilities of the estate, prepared by one of the attorneys from information given him by J. C. Smith, was presented and used as the basis of settlement. On that statement a certain tract of land was put down as containing 1,000 acres at $20 per acre. According to the statement, the net value of the estate was $15,300. Thereupon plaintiff and defendant signed the following agreement:

"J. C. Smith, individually and as executor of the estate of D. C. Smith, proposes that Mrs. Jennie A. Smith accept either one of the following propositions, to wit: (1) Four thousand dollars payable on January 1, 1914, with interest from August 1, 1913, she to retain the personal property which she has already received, except the silver waiter which she is to return to J. C. Smith, and she is to keep the lands which she holds by deed; or (2) one-fourth of the entire estate of D. C. Smith after paying all debts and liabilities. In either case Mrs. Smith is not to be charged any rents for the home place prior to August 1, 1913, but she is to pay $10 per month from August 1, 1913, and is to deliver possession by December 1, 1913, or before. Mrs. Smith is further to be relieved from all costs, except her attorney's fees, in the pending litigation.

Mrs. Smith binds herself to accept either one of said propositions by notice in writing within 20 days from this date, and this is to be in full of all her interest in the estate of D. C. Smith. This agreement is to be carried out by such decrees or conveyances as the attorneys of the said J. C. Smith in the pending suits may determine upon.

Witness our hands and seals this the 30th day of July, 1913, A. D."

Within 20 days thereafter, plaintiff notified defendant in writing of her acceptance of offer No. 1 in the agreement. Within 30 days after her acceptance of this offer, defendant's attorneys wrote plaintiff's...