Privette v. Garrison, 17565
| Decision Date | 10 August 1959 |
| Docket Number | No. 17565,17565 |
| Citation | 110 S.E.2d 17,235 S.C. 119 |
| Court | South Carolina Supreme Court |
| Parties | Wallace H. PRIVETTE, Respondent, v. Joyce Gandy GARRISON et al., Appellants, Mary Gandy BAIRD, Individually and as Adm'x, Respondent, v. Wallace Henry PRIVETTE et al., Appellants. |
John Gregg McMaster, Columbia, for appellants, Ziegler and others.
D. Carl Cook, Hartsville, for Privette.
Wallace H. Privette and May Gandy were married on July 29, 1931. She died on January 31, 1958. Her will, dated October 19, 1948, contained the following provisions:
1. By Item II she devised and bequeathed 'my home place where I now live, containing three hundred ninety-six and 41/100 (396.41) acres, more or less, purchased by me from The Prudential Insurance Company of America, and all livestock, farm machinery and equipment used or held for use in the cultivation of said land to my husband, Wallace Henry Privette, for and during the term of his life and after his death to my nieces, Joyce Gandy Garrison, and Mary Livingston Gandy (daughters of my brother Simmons A. Gandy), Margaret Gandy Zeigler and Harriet L. Gandy (daughters of my brother F. LeRoy Gandy) and Annie May Covington Hicks (daughter of my sister, Leila Gandy Covington), to be divided and apportioned among them so that each of the four nieces first named shall take a one-sixth (1/6) part and the said Annie May Covington Hicks shall take a two-sixths (2/6) part; provided that my said husband shall be entitled to the possession and use of the said livestock, farm machinery and equipment immediately upon my death and not at the conclusion of the administration of my estate, and that neither he nor his estate shall be required to replace any of the said livestock, farm machinery or equipment consumed or rendered worthless in the cultivation of said land, or that may have otherwise been disposed of by him.'
2. By Item IV she gave and bequeathed 'the rest, residue and remainder of my personal property of every nature, kind and description to my said five (5) nieces, Joyce Gandy Garrison, Mary Livingston Gandy, Margaret Gandy Zeigler, Harriet L. Gandy and Annie May Covington Hicks, to be divided among them in accordance with a written memorandum bearing even date herewith and signed by me, which I shall leave with this will.'
These testamentary provisions gave rise to the two cases now under appeal, as follows:
1. An action by Wallace H. Privette against the administratrix c. t. a. and the five nieces named in the will. In his complaint Mr. Privette alleged: that prior to October 15, 1931, the real property purportedly devised under Item II had been owned by him and his father; that during the depression of 1930 they had been obliged to mortgage their respective portions of it to The Prudential Insurance Company of America; that these mortgages, having become in default, had been foreclosed, and at the foreclosure sale the property had been purchased by the mortgagee; that thereafter Prudential had agreed to convey the said property to the plaintiff for $11,396.11, of which ten per cent was to be paid at the time of the conveyance and the balance, to be secured by mortgage, over a period of twenty years; that since there were at that time many judgments and other obligations outstanding against him, the plaintiff and his wife had entered into an agreement whereby he would pay for the property and would take title in her name, and that she would hold the title in trust for him and convey the property to him upon his demand; that in reliance upon that agreement the plaintiff had authorized Prudential to convey the property to his wife, which was done on October 15, 1931, at which time plaintiff made the cash payment of $1,139.61; that thereafter plaintiff paid the mortgage obligation in full; that at all times subsequent to said conveyance the plaintiff had full control and possession of the premises, maintained there his home and conducted there his farming operations, paid all taxes, and expended large sums for repairs and improvements; and that the attempted testamentary disposition of the property by his wife was in repudiation of the agreement before mentioned. He prayed that he be adjudged the owner of the property, that a deed conveying it to him be executed under order of the court, and that the defendants be barred of any right, title or interest in or to the said premises.
The defendants Margaret Gandy Zeigler, Harriet L. Gandy (then Lyon), and Annie May Covington Hicks answered, denying the allegations of the complaint other than those relating to matters of record, and pleading estoppel and laches. No answer on the part of the other defendants appears in the record before us.
2. An action by Mary Gandy Baird (formerly Livingston), individually and as administratrix c. t. a., seeking construction of Item IV of the will and instruction as to disposition of the personal property therein referred to, the complaint alleging that the memorandum mentioned in Item IV had never been found. Joined as defendants in this action were all persons who would have been Mrs. Privette's heirs and distributees had she died intestate, namely: her four nieces other than the plaintiff, her two nephews and her widower, Wallace H. Privette. Upon information and belief the plaintiff alleged that the personal property in question consisted of:
Balance of $1,238.82 in checking account in Bank of Hartsville;
Balance of $2,402.41 in checking account in Citizens Bank of Darlington;
Note and mortgage of real estate given by S. J. Jernigan to the testatrix, the exact amount of the obligation being as yet undetermined;
'All of the jewelry, silver, china, furniture and household goods, furnishings and equipment and personal effects owned by the testatrix at the time of her death, the nature and extent of which is now being investigated by the plaintiff and a detailed list of which will be submitted to the court during the progress of this case.'
One 1950 Cadillac automobile.
The defendant Wallace H. Privette answered, alleging that he was the absolute owner and in possession of all the livestock, farm machinery, and equipment located on the premises in question and referred to in Mrs. Privette's will; that he was also the absolute owner and in possession of the Cadillac automobile and all of the jewelry, silver, china, furniture and household goods, furnishings and equipment located on the premises and recently listed by the administratrix; and that the other property mentioned in the complaint should be distributed as intestate property.
The defendants Margaret Gandy Zeigler, Harriet Gandy Lyon and Annie May Covington Hicks answered, admitting that the written memorandum referred to in Item IV was not attached to the will, and alleging that the personal property bequeathed under said item did not descend as intestate property but passed under the will to the five nieces of the testatrix named in Item IV, share and share alike. No answer on the part of any of the other defendants appears in the record before us.
Both actions were referred to the Master for Darlington County to take the testimony; and on the testimony so taken and reported they were heard before the Honorable James Hugh McFaddin, Judge of the Third Judicial Circuit. In the case first mentioned he held that the real property involved belonged to Mr. Privette in fee simple, as cestui of a resulting trust. In the second, he held, by his order of November 14, 1958, that there was no intestacy as to the property mentioned in Item IV of the will, and that the bank accounts and the note and mortgage described in their answered had vested in Mrs. Privette's five nieces in equal shares; and he reserved decision as to the ownership of other personal property. Thereafter, by order dated January 21, 1959, he held: that certain enumerated articles of personal property had been owned solely by Mrs. Privette and passed under her will to her five nieces in equal shares; that certain others belonged to Mr. Privette individually; that certain others were owned by Mr. and Mrs. Privette in equal proportions; and that, regardless of ownership, Mr. Privette was entitled to the possession and use of all livestock, farm machinery and equipment during his life, without accountability on his part or on the part of his estate for any such property as during his life may have been consumed or worn out or disposed of, and that any of such property as might remain at the time of his death should be divided equally among Mrs. Privette's five nieces.
From the order in the first case and the order of January 21, 1959, in the second, three of the nieces ...
To continue reading
Request your trial
-
Lollis v. Lollis
...may be proved by parol evidence, an express trust may not. Whitmire v. Adams, 273 S.C. 453, 257 S.E.2d 160 (1979); Privett v. Garrison, 235 S.C. 119, 110 S.E.2d 17 (1959). Under S.C.Code Ann. § 21-27-10 (1976), an express trust must be manifested and proved by some writing signed by the par......
-
Estate of Stanley v. Sandiford
...involves the determination of ownership of the savings account. The issue of title to property is a legal one. Privette v. Garrison, 235 S.C. 119, 130, 110 S.E.2d 17, 23 (1959); Frady v. Ivester, 118 S.C. 195, 203, 110 S.E. 135, 137 (1921). An action involving probate of a will is an action......
-
May v. Jeter
...until the balance of the mortgage debts be paid. Knight v. Hilton, 224 S.C. 452, 79 S.E.2d 871. As was stated in Privette v. Garrison, 235 S.C. 119, 110 S.E.2d 17, 'The difficulty, if not impossibility, in these circumstances, of arriving at a safe and certain conclusion as to the truth of ......
-
Green v. Green
...house and lot and when mortgaged or sold she was entitled to one-half of the proceeds thereof. In the case of Privette v. Garrison et al., 235 S.C. 119, 110 S.E.2d 17, 21, this Court 'While a resulting trust may be proven by parol, the evidence to establish it must be clear, definite and co......