Reams v. Spann

• Citation: 2 S.E. 412,26 S.C. 561
• Parties: REAMS and others v. SPANN and others.
• Decision Date: 21 April 1887
• Court: United States State Supreme Court of South Carolina

2 S.E. 412

26 S.C. 561

REAMS and others v. SPANN and others.

Supreme Court of South Carolina

April 21, 1887

Appeal from circuit court, Sumter county.

This was an action to recover the possession of real estate, and for partition, brought by H. M. Reams and others respondents, claiming to be, together with two of the defendants, William F. and Mary V. Spann, owners in fee as heirs of Elizabeth Spann, deceased, and Claiming that the defendants Henry and J. J. McRae were in possession of a part of the estate of the said Elizabeth Spann, deceased, but that the plaintiffs and the defendants Spann were entitled to the possession of the same.

Earle & Beard, for respondents.

McIVER J.

Elizabeth Spann, having first duly made and executed her last will and testament, departed this life in 1840, leaving five children her surviving. A copy of her will is not set out in the record, and all that we know of its provisions is derived from an extract from it appearing in the decree of the circuit judge, as follows: "The whole of may real estate I wish to be divided between my six children first above named. *** Should any of my children die leaving no child or children, the property herein given I wish divided among my surviving children." It appears that one of the six children thus named, to-wit, Mary R., died in the life-time of the testatrix, leaving children; and in 1841 partition was made, by proceedings in the court of ordinary, of the said real estate, among the five surviving children of testatrix and the children of the said Mary R., each of the five children taking one-sixth, and the children of Mary R. the remaining sixth. Two of the five children, viz., Martha E Spann and Sarah A. Spann, died, the former in 1879, and the latter a year or two before, intestate, childless, and unmarried, and this controversy is as to the shares of said real estate which, in said partition, had been allotted to them. The plaintiffs claim that they, together with the two first-named defendants, are entitled, as the surviving heirs of the testatrix, to the said land, and they ask partition of the same, according to their several interest as set forth in the complaint. The other two defendants, the McRaes, the appellants herein, who are in possession of the land, resist this claim, and assert their right to hold the land by possession.

The circuit judge who heard the whole case, without a jury, seems to have considered only the question of the proper construction of the will, without, passing upon the question as to the adverse possession of appellants, for he says in his decree: "My notes of evidence do not show how long the McRaes were in possession of the land, but in the argument it appeared that it was assumed that the possession had been such that it would defeat the claim of the plaintiffs if the construction of the devise contended for by the defendants' counsel should prevail, and otherwise it would not; there being continuous minorities that would defeat the plea of the statute." It appears, however from the "case" as prepared for argument here, that this was a misconception on the part of his honor, for it is there stated that "there was no testimony offered on the part of the defendants, Henry and J. J. McRae, and there was no proof whatever of the title claimed by them, or of the length of time that they had been in possession of the land. The plaintiffs made no admissions or concessions at the trial as to any claim or right of the said Henry McRae and J. J. McRae to the land in question." It is quite manifest, therefore, that there was some misunderstanding in reference to this matter, and hence we would not feel willing to rest our decision either upon the one or the other view of it, but will proceed to considerred the only question passed upon by the circuit judge, and the only question raised by this appeal. That question is as to the proper construction of the will. The appellants contend that an absolute estate vested in Sarah A. and Martha E. Spann, the first ...