Powers v. McEachern
| Decision Date | 18 May 1876 |
| Citation | 7 S.C. 290 |
| Parties | POWERS v. MCEACHERN. |
| Court | South Carolina Supreme Court |
Where in an equity cause, an order is made referring certain issues to the jury, the parties who make no objection to the order at the time it is granted cannot afterwards make it the ground of an exception.
Where evidence is received without objection at the trial of an equity cause it cannot it seems, be afterward made a ground of exception.
A testator who had legitimate children by a wife from whom he had been separated many years, and a family of illegitimate children by a woman with whom he was cohabiting at the time he made his will, devised and bequeathed his estate for the benefit of his wife and children: Held , Upon the proof, that by wife and children the testator meant his illegitimate children and their mother, and that they were entitled to the estate of the testator as his devisees and legatees.
Where a testator having a legitimate and also an illegitimate family devised his estate to the latter, and the former commenced an action against the latter, claiming the estate as the devisees and legatees meant by the testator, and making no claim to three-fourths thereof, under Section 4 of the Act of 1795, but demanding general relief: Held , That the plaintiffs by their complaint had made no such election as deprived them of their rights under the Act of 1795, and that under the prayer for general relief such rights could be established.
BEFORE TOWNSEND, J., AT DARLINGTON, NOVEMBER TERM, 1874.
This was an action by Charles Powers and others against James A McEachern and others.
The case on which the appeal was heard is contained in the decree of the Circuit Court, the amendment agreed on by counsel and the will of John G. Powers, below set forth.
The decree of the Circuit Court is as follows:
John G. Powers died in 1867, leaving a considerable real and personal estate. Soon after his death letters of administration upon his personal estate were duly granted to Sidney F. Cole. Some time in 1869 the last will and testament of John G. Powers was discovered and admitted to probate. The letters granted to Sidney F. Cole were then revoked, and, the executor named in the will having predeceased the testator letters of administration cum testamento annexo were granted to James A. McEachern. On the twenty-first day of October, 1870, a decree was rendered by the Probate Court for Darlington County partititioning and distributing all the property of the testator left after the payment of his debts according to the provision of the will, among those claiming at that time to be the heirs and devisees of the testator. Some time in 1872 this complaint was filed by the plaintiffs against the defendants, for the purpose of impeaching the decree of the Probate Court for an account from the administrator cum testamento annexo , and a distribution and partition of the property left by the testator among the plaintiffs, as his heirs and devisees. The allegations, substantially, are: That the plaintiffs are the children and lawful heirs of John G. Powers and Sarah Powers, his wife; that John G. Powers and Sarah Turner intermarried on the fourth day of January, A. D. 1813; that Sarah Turner died in May, 1859; that John G. Powers left him surviving as his sole heirs at law and devisees the plaintiffs; that Powers died, leaving a considerable estate; that letters of administration were granted to Sidney F. Cole and afterwards revoked upon discovery of his last will and testament; that the executor therein named predeceased the testator, and letters cum testamento annexo were duly granted to James A. McEachern; that the youngest of the plaintiffs is above the age of twenty-one years, and, according to the provisions of the will partition can be made; that the defendants confederated together to defraud the plaintiffs, and sought in the Probate Court to partition the property left by John G. Powers among his pretended children and wife; that the plaintiffs, being non-residents of the State, had no knowledge of the proceedings instituted for this purpose; that a decree of the Probate Court was rendered partitioning and distributing the estate among the parties claiming to be the heirs at law and devisees of the testator.
The plaintiffs pray that the decree of the Probate Court may be impeached for the fraud, that there be a full accounting by the administrator and his predecessor, and by all the defendants who have in any manner intermeddled with the said property or recovered any share or portion thereof; that they have judgment for the recovery of the real estate and delivery of the assets and personal property, and for judgment against the administrators for any amount that may be upon a full accounting found due, also for partition and distribution according to the terms of the will among the plaintiffs, and for general relief.
The defendants in their answer admit the death of John G. Powers, the grant of administration and administration cum testamento annexo , the distribution and partition of the testator's estate in accordance with the decree of the Probate Court, the provisions of the will as substantially set forth in the complaint, but deny all the other allegations.
The defendants, Sidney F. Cole and James A. McEachern, also claim that they have been discharged by a proper Court and protected in this way from the demands of the plaintiffs. At the November Term of the Court of Common Pleas for Darlington, of the year 1873, the case was heard. Certain issues of fact raised by the pleadings were submitted to a jury. The first was whether John G. Powers and Sarah Turner were lawfully married; the second, whether Sarah Turner was a free person of color or a white woman; third, whether John G. Powers, when he used the terms in his will of " wife and children," meant Sarah Turner and her children or Sarah Conner and her children. The finding of the jury in the first issue was " that John G. Powers was married to Sarah Turner." On the second, " that Sarah Turner was a free person of color." And on the third, " that John G. Powers, when he used the term ‘ wife and children’ in his will, meant Sarah Conner and her children."
At the November Term, 1874, of the Court of Common Pleas for said County, the case was heard upon its merits, and the question before the Court for decision is whether the plaintiffs are entitled to the relief demanded in their complaint. The plaintiffs, it will be observed, claim to be the heirs at law and devisees of John G. Powers, and pray for a partition of the property of the testator according to the terms of the will. They claim under the will, and not under the Act of 1795.
The fact of the marriage of John G. Powers and Sarah Turner is unquestionably established. This is the finding of the jury, and a review of the testimony satisfies my mind that the verdict is correct.
The status of Sarah Turner at the time of the marriage is likewise established by the verdict of the jury. An examination of the testimony irresistibly conducts my mind to the same conclusion.
The meaning of the testator when he used certain terms in his will, as found by the jury, seems to be substantiated by the evidence. It is asserted by the plaintiff, however, that there was error in allowing parol testimony to go to the jury, because in effect it was a violation of the rule that parol testimony will not be admitted to vary, alter or contradict a written instrument. At the time this issue of fact was submitted to the jury no objection was urged by the plaintiffs either to the submission of the issue or the admission of parol testimony to explain the terms employed in the will. It is too late to urge the objection to the competency of the testimony. Assuming that it is not, was the testimony incompetent? The identity of the thing granted or devised can be ascertained by resort to extrinsic testimony. The identity of the person to whom the gift or conveyance is made can be ascertained in the same way Such evidence is absolutely indispensable to the execution of all testamentary papers.-Greenleaf on Ev., 266; Pell vs. Ball , Speer Eq., 83. I think the evidence was admissable. Suppose the testimony was incompetent and the ascertainment of the intention of the testator was a question of law, to be determined by an examination of the terms of the will, the same conclusion as that reached by the jury can be attained. The testator, in the second clause, directs that his property shall be kept together until his youngest child attain the age of twenty-one years. Sarah Conner and her children were living upon the land of testator at the time of the execution of the will. The testator mnst have alluded to them when he directed that they should continue to live upon it until a certain event happened. Sarah Powers was living in another State with her children. If the marriage with her took place in 1813, the youngest child of that marriage must have attained the age of twenty-one long before the execution of the will, and the testator, therefore, could not have intended her and her children when he used the words " wife and children." In the third clause he directs a partition among his wife and children when his youngest child then living attains the age of twenty-one years. The language employed in this clause indicates that the intention of the testator was to give his property to Sarah Conner and her children, who were living on the land at the time of the execution of the will. Taking all the provisions of the will with its language into consideration, my conclusion is that the testator meant by the words " wife and children" Sarah Conner and her children.
Certain conclusions of law must now be attained to decide ...
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