Quick v. Owens

• Decision Date: 16 July 1941
• Docket Number: 15295.
• Citation: 15 S.E.2d 837,198 S.C. 29
• Parties: QUICK v. OWENS.
• Court: South Carolina Supreme Court

15 S.E.2d 837

198 S.C. 29

QUICK v. OWENS.

No. 15295.

Supreme Court of South Carolina

July 16, 1941

Appeal from Common Pleas Circuit Court of Marlboro County; M. M Mann, Judge.

Action by S. J. T. Quick, as executor de bonis non of the estate of Ebbie Quick, deceased, against J. K. Owens, as executor of the estate of Florence Quick, deceased, involving ownership of money. From an adverse judgment, the defendant appeals.

Order of Judge Mann follows:

This case came up before me at the fall term of court in Marlboro County and by consent of counsel was marked heard there and the hearing concluded recently before me at Columbia. The testimony had been taken by agreement of the parties by Henry A. Rogers, clerk, as referee, and the hearing was on the record but there was very little if any difference in the testimony of the various witnesses and I might say there was no real contradiction among them.

It is not necessary, I think, to advert here to the allegations of the complaint and answer. The questions to be solved are in themselves not complicated nor numerous, and as I see it depend mainly on the facts found and will appear sufficiently as I proceed.

Ebbie B. Quick died in 1927 at the age of eighty-two years, at his home in Marlboro County. He was a farmer and it appears had resided on this place all of his life. He was the father of nine children, eight of whom survived him. One son predeceased him but left two daughters to maintain his representation. As the children of Ebbie Quick married off they settled around him and at the time of his death, and for some years prior thereto, the only ones at home with him were the two single daughters, Florence and Pruella, and one of the granddaughters.

Of property, according to the inventory and appraisal filed in the probate court he left--personalty consisting of mules wagons, cotton, corn, household furniture and fixtures appraised at $681.50; realty, 250 acres, appraised at $7,500.

His will, dated October 18, 1925, and a codicil dated February --, 1927, were duly probated in the probate court of Marlboro County. By item 2 thereof he gave to two of his daughters Florence and Pruella Quick, 100 acres of his land, describing it, and in the concluding part of this clause provided "and I also will to my said two daughters Florence and Pruella, all of the household furniture and fixtures and other personal property on the premises."

By the third item he gave to Ebbie W. Quick, a son, 4 acres of land, describing it, and in item 4 he devised all the rest and residue of his property in seven equal shares, one each to his six living children (omitting Florence and Pruella), and the other to the children of the predeceased son mentioned above. He named S. J. T. Quick executor. By his codicil he changed item 4 of his will so as to give this residue of his property, two-ninths to his daughters, Florence and Pruella, and one-ninth each to his six other children, and one-ninth to Ruby and Beatrice Quick (the children of his deceased son). It might be well here to set out verbatim these clauses of the will and codicil as they are those involved.

"Item Two: I will, devise and bequeath unto my two daughters Florence Quick and Pruella Quick, upon the death of either, the survivor to take, all of that piece, parcel or tract of land containing one hundred acres including the Home Site with the building thereon--Beginning at a stake the B. E. Moore line running in an Eastern direction to Crooked Creek, this line will run South of the house occupied by my son Martin; thence with the run of Crooked Creek to a point so that a line starting from this point and running in a Western direction and parallel to the Northern line will strike the Moore line and then run with the Moore to the beginning corner and make a tract of one hundred acres-- And I also will to my said two daughters, Florence and Pruella, all of the household furniture and fixtures and other personal property on the premises."

"Item Four: All of the Rest and Residue of my property I will and devise and bequeath one seventh each to Martin Quick, Braxton Quick, Carey Quick, Ebbie W. Quick, Elon Quick, one seventh jointly to Ruby Quick and Beatrice Quick, the children of my deceased son Lauder Quick, and one seventh to Lela May Caulk."

"Item One Codicil: I hereby revoke provisions of Item Four of said will and insert in lieu thereof the following: 'All of the rest and residue of my property I will and devise unto my two daughters Florence and Pruella Quick two ninths thereof, in the event of the death of either during my life time the survivor to take; one ninth of such residue each to Martin Quick, Braxton Quick, Carey Quick, Ebbie W. Quick, Elon Quick and Lela May Caulk, and the remaining one ninth to Ruby Quick and Beatrice Quick, and in the event of the death of either Ruby or Beatrice during my life, the survivor to take said one ninth of the residue."'

S. J. T. Quick duly qualified as executor and wound up the estate. It seems his main duty was a division of the real estate, there being no debts, and he actually handled no money. The real estate was divided up among the children according to the will, Florence and Pruella taking both the 100 acres specially devised to them and their share of the residue, and they continued to reside at the old home.

Some years afterwards, probably about 1933, it is not clear from the testimony, Pruella died and the testimony does not show how her property went, or whether she was testate or intestate.

Florence died October 4, 1937. She left a will, in which she devised her property, speaking generally, to four of her brothers and sisters, leaving specific devises to her two nieces, the children of the predeceased brother. The practical effect of her will was thus to carry the property to the children and grandchildren of Ebbie Quick, just as he had devised in his will, except that she left out two of his children, Mrs. Caulk and Carey Quick, her brother and sister.

J. K. Owens, Esq., was named and qualified as executor of Florence's will and in due course, within a day or two after her death with the appraisers of the estate and members of the family met at the homestead to make the inventory and appraisement. According to the testimony they had gone over the house and found nothing out of the ordinary and had really started to leave when Mrs. Caulk--omitted from the will--suggested that they look into a locked trunk which was in the house. One of the nieces who had lived with Florence and her grandfather Ebbie Quick produced the key to this trunk and they began looking through it and discovered $8,642.26 of cash money wrapped up in all sorts of old papers, books, pamphlets and in pocketbooks. It is this money that has brought about this suit, the plaintiff, the executor of Ebbie Quick, Sr., having the support of his two children who were not included in the devise under Florence's will and the defendant, the executor of Florence's will, having the support of the others, who would take the property devised in her will to the exclusion of the brother and sister left out by Florence. On the one hand the claim is that this money rightfully belonged to Ebbie Quick's estate. On the other, first, that it was Florence's money, and, second, even if it was Ebbie's, it passed under the concluding clause of item 2 of his will and plaintiff had no right to it.

As to the first question--Whose was the money? I am convinced that all or the major part of it did belong to Ebbie Quick, the testator. The testimony satisfies me on that point.

In the first place, the logical inference from the facts proved is that Ebbie Quick would have had an accumulation of money at his death. I think that a consideration of the testimony will lead to no other conclusion. He was shown to have been an industrious farmer, that he carefully managed his plantation and had an extensive and high-class farm, providing the means of earning a good return. As a matter of fact, it was proved that he was a successful producer and consistently made crops better than the average. His activities extended over many years, he being eighty odd years old when he died. He was most frugal, and had good business habits. He would sell his cotton crop every year, not storing his cotton, but he would sell it when he had accumulated sufficient lots to make it attractive to purchasers. He did not have any mortgage or lien merchants over to him to dictate his sales or the price of his purchases. He kept his expenses down. He worked--his children worked. He always paid cash for his fertilizers and supplies--a fact which itself shows that he was an accumulator and not a spender, and kept cash on hand. Indeed all of the witnesses who testified stressed this side of his nature. He managed things conservatively and he saved his money. He had no extravagances or dissipations; was frugal, thrifty, saving. He lived at home and spent his money neither on lands, automobiles nor high living.

All this indicates that it was to be expected that he should have had money--that he did have more than one circumstance indicates--year in and year out, good and bad financial years, he dealt only in cash. As already mentioned, he paid cash for fertilizer and supplies and therefore he must have had a store of funds from which he could draw. The evidence shows that he did not deal with banks and always had to have the cash for what he sold. If he had to take a check, he promptly converted it into cash. He had his own place to keep it. At no time, according to the testimony, during his lifetime or during that of his daughters after him was the house ever left unprotected. They never all left home at the same time, and if they went out no further than the...