Rice v. Bamberg

• Decision Date: 08 March 1904
• Citation: 46 S.E. 1009,68 S.C. 184
• Parties: RICE v. BAMBERG.
• Court: South Carolina Supreme Court

46 S.E. 1009

68 S.C. 184

RICE v. BAMBERG.

Supreme Court of South Carolina

March 8, 1904

Appeal from Common Pleas Circuit Court of Barnwell County; Gary Judge.

Action by Eugenia M. Rice against F. M. Bamberg. Judgment for plaintiff, and defendant appeals. Affirmed.

Jno. R Bellinger, for appellant. H. F. & B. T. Rice, for respondent.

POPE C.J.

John M Whetstone departed this life in the year 1870, leaving a wife, Mrs. Susan H. Whetstone, and her two children, Eugenia M. Whetstone (now Mrs. Rice) and Adam Whetstone, as well as John Whetstone, the only child of a predeceased wife, as his only heirs at law and next of kin. He left a will of full force at his death. Mrs. Susan H. Whetstone alone qualified as the executrix thereof. By the terms of this will it was provided that the executors should sell his steam sawmill for cash and pay his debts, but, if it should turn out that the proceeds of the sale of such steam sawmill were insufficient to pay his debts, he gave the executors power to sell as much of his real estate from the western portion of his plantation, known as "China Grove," as will satisfy said debts. By the second clause of his will he gave and devised to his widow, Susan H. Whetstone, for and during her natural life, all his China Grove plantation, whereon was the dwelling house. After her death he devised all of his China Grove plantation to his children begotten of the said Susan H. Whetstone, but, should such children die without lawful issue, the same, after one-fourth part of the value of said lands had been paid to testator's sister-in-law, Miss Elizabeth Arnold, should vest in his son John Whetstone, and his heirs, forever. By the fourth clause of his will he devised all the balance of his lands to his widow Susan H. Whetstone, and her heirs, forever.

Unfortunately for the plans developed in his will by the testator, his debts were far greater than could be paid off by the sale of his steam engine and mill, even when aided by the sale of the western portion of his plantation, known as "China Grove." Hence his widow and executrix Mrs. S. H. Whetstone, filed her complaint in the court of common pleas for Barnwell county, in this state, praying that suits against her as such executrix by individual creditors might be enjoined, and all such creditors be required to establish their claims under her action; that she might be allowed to account for her actings and doings as said executrix; that the lands of her testator might be sold to pay debts after claim for dower and homestead had been adjusted and provided for. She stated that her testator was seised of 1,100 acres of land. She named as parties defendant to her said action testator's three children, including the two she had borne him, and one or more of his creditors. The service of the summons and complaint was accepted by the creditors, also by John Whetstone, who was an adult, and Mrs. Susan H. Whetstone accepted service for her minor children, Eugenia and Adam. The judgment was by consent, allowing the widow, Susan H. Whetstone, to have set apart to her, as her dower and homestead, 200 acres of land, with the dwelling house, and requiring the balance of the land, about 900 acres, after being divided into 100-acre lots or parcels, to be sold by the sheriff, and the proceeds, after the payment of costs and counsel fee, to be applied to the payment of debts. The son Adam died in the year 1896, unmarried and childless. Then the mother, Mrs. Susan H. Whetstone, died in 1898. In the year 1899, the plaintiff, Eugenia, who had intermarried with one Thomas S. Rice, brought her action against F. M. Bamberg, as defendant, to recover some 182 acres of land, on the ground that she was not a party to the suit of her mother, just above described, and as a devisee under her father's will she was entitled to the same; the life tenant, her mother, being dead, and her brother, Adam, having died before her mother, unmarried and without issue. The defendant admitted that he was in possession of the land, but invoked the protection of the statute of limitations, and also that there must be some mistake in the judgment roll of the action of Susan H. Whetstone, executrix, as plaintiff, against John Whetstone et al., as defendants, of August, 1872, as to the service upon the infants, Eugenia and Adam Whetstone, of the summons and complaint therein; also, that the power of sale in the will conferred upon Susan H. Whetstone should be considered as exercised when she obtained the sale thereof through the court of common pleas. There was a trial of these issues before Judge Gage and a jury, which resulted in a verdict for the defendant; but the Supreme Court of this state ordered a new trial on account of the mistake of the circuit judge in ordering the jury to pass upon the documentary evidence without first passing upon and construing said documents himself. See Rice v. Bamberg, 59 S.C. 498, 38 S.E. 209. The action came on for trial before Judge Ernest Gary and a jury at the spring term of 1903. When the plaintiff closed her testimony, a motion was made for nonsuit. which was refused. At the conclusion of the testimony the presiding judge directed the jury to return the following verdict: "We find for the plaintiff the land in dispute"--which was done. After entry of judgment, the defendant appealed upon the following grounds:

"(1) Because his honor erred in refusing the nonsuit and in directing a verdict for plaintiff, as under the will of John M. Whetstone, at the death of Adam, John C. Whetstone became a tenant in common with plaintiff, and she could not recover as sole plaintiff, the interest of John C. in Adam's interest having passed under the sale. (2) Because, under the will of John M. Whetstone, Adam took a vested interest in fee simple at the death of testator; and, dying without issue, at his death his interest went to his mother and the plaintiff in common, and under the sale in question the mother's interest passed to defendant. (3) Because, if the interest of Adam and that of plaintiff was a fee conditional, it was barred by the sale made by the life tenant. (4) Because, it being shown that the land in question was the western portion of China Grove, the sale should be referred to the power in the will, and

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