Rouse v. Branch

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtGARY
Citation74 S.E. 133,91 S.C. 111
Decision Date25 March 1912
PartiesROUSE et al. v. BRANCH et al.

74 S.E. 133
(91 S.C. 111)

ROUSE et al.
v.
BRANCH et al.

Supreme Court of South Carolina.

March 25, 1912.


1. Wills (§ 051*)—Conditions—Validity.

A condition in a will for forfeiture of a gift on the beneficiary contesting the will is considered in terrorem merely, and the gift is not forfeited by a contest, based on probable cause; but, where there is, not simply a declaration of forfeiture, but a valid gift to a third person in case of breach of the condition, a contest of the will vests the gift in the other beneficiary.

[Ed. Note.—For other cases, see Wills, Dec. Dig. § 651.*]

2. Wills (§ 651*)—Conditions—Validity.

Under a will reducing gifts to beneficiaries who should sue to break the will, beneficiaries do not forfeit their right to the larger gifts by contesting the will on the ground of forgery.

[Ed. Note.—For other cases, see Wills, Dec. Dig. § 651.*]

Appeal from Common Pleas Circuit Court of Barnwell County; J. W. De Vore, Judge.

"To be officially reported."

Action by M. D. Rouse and others against Jim Branch and others. From the judgment, defendants appeal. Affirmed.

Bates & Simms and W. B. De Loach, for appellants.

W. A. Holman and R. C. Holman, for respondents.

GARY, C. J. The record contains this statement: "This is an action for partition between the plaintiffs and the defendants, other than the executors, of the real estate left by the late W. H. Mears of Hampton county, said state, under the terms of his last will and testament, and for the construction of the said will. The defendant executors in their answer likewise desired the instruction of the court as to the rights of the various parties under said will; and all of the defendants denied the right of the plaintiffs to any interest in said estate, by reason of having required the will to be proven in due form of law, contending that the same was a forgery, and because of the proceeding thereunder taken, as contained in the printed record now on file in the Supreme Court in the case of Thomas v. Rouse, which record is likewise printed herein, as required by respondents."

The following provision appears in the will: "If any of the parties above mentioned, shall enter a suit in law to break my will, he shall have five dollars only, and his share shall be divided among them mentioned in the fourth division of my will." The appellants' attorneys in their argument, after discussing the authorities, say: "According to the weight of the foregoing authorities, the following principles seem to be established: (1) Conditions annexed to legacies and devises, providing a forfeiture in case the will is contested, are valid. (2) In case of a legacy, a breach of the condition will not work a forfeiture, unless there is a gift over, and there was probabilis causa litagandi; a breach of the condition will not work a forfeiture, either as regards a legacy or devise. (4) Where the will is contested on behalf of an infant legatee or devisee, the forfeiture will not be decreed, irrespective of whether there was a gift over or not."

In the first place, let us turn to our own decisions to see to what extent this question is determined by them. In the case of Mallet v. Smith, 6 Rich. Eq. 12, 60 Am. Dec. 107, the testator by his will, made certain provisions for some of his slaves, which were void under the statute. He bequeathed to his sister, J. M., $2,000, made her one of his residuary legatees, and then provided as follows: "Should any of my legatees, under this my will complain, or express any dissatisfaction with my disposition of my estate, herein made, I hereby direct and empower my executors, in their discretion, to revoke any and all legacies, such complaining legatee or legatees, might have been entitled to, and to dispose of the same, between my other legatees, as to my executor may seem just and proper." The chancellor on circuit used this language in that case: "It is insisted on the part of the defendant that the complainant has forfeited her legacy of $2,000, as well as her interest in the residue, by calling in question the validity of the provisions made in the fourth clause. The general proposition on this subject was established as early as Powell v. Morgan, 2 Vern. 91. That was a legacy upon condition that the legatee did not disturb or interrupt the will of the testatrix. The validity of the will was, however, unsuccessfully contested by the legatee. It was held that this was no forfeiture of the legacy, as there was probabilis causa litigandi, and such is now the well-settled doctrine, to wit, that such condition is considered in terrorem merely, and does not operate a forfeiture of the legacy. But where there is not simply a declaration of forfeiture, but a valid...

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22 practice notes
  • Haynes v. First Nat. State Bank of New Jersey
    • United States
    • United States State Supreme Court (New Jersey)
    • July 22, 1981
    ...853 (1952); Wadsworth v. Brigham, 125 Or. 428, 259 P. 299 (1927); In re Friend's Estate, 209 Pa. 442, 58 A. 853 (1904); Rouse v. Branch, 91 S.C. 111, 74 S.E. 133 (1912); Tate v. Camp, 147 Tenn. 137, 245 S.W. 839 (1922); In re Chappell's Estate, 127 Wash. 638, 221 P. 336 (1923); Dutterer v. ......
  • Cocklin v. Watkins (In re Cocklin's Estate), No. 46550.
    • United States
    • United States State Supreme Court of Iowa
    • March 9, 1945
    ...Judge Evans' dissenting opinion. Illustrative cases include In re Friend's Estate, 209 Pa. 442, 58 A. 853,68 L.R.A. 447; Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A.,N.S., 1160, Ann.Cas.1913E, 1296; Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755;In re Keenan's Will, 188 Wi......
  • Commerce Trust Co. v. Weed, No. 46545
    • United States
    • United States State Supreme Court of Missouri
    • November 10, 1958
    ...169; Whitehurst v. Gotwalt, 189 N.C. 577, 127 S.E. 582; In re Friend's Estate, 209 Pa. 442, 58 A. 853, 68 L.R.A. 447; Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A.,N.S., 1160; Sherwood v. McLaurin, 103 S.C. 370, 88 S.E. 363; Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755; D......
  • Barry v. American Security & Trust Co., No. 8288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 19, 1943
    ...52; 42 A.L.R. 847; 17 Ann.Cas. 997; 28 R. C.L. 315. A. L. I. Restatement of Property, Tentative Draft No. 14, Sec. 428. 3 Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A.,N.S., 1160, Ann.Cas. 1913E, 1296; In re Bergland's Estate, 180 Cal. 629, 182 P. 277, 5 A.L.R. 1 In re Friend's Estat......
  • Request a trial to view additional results
22 cases
  • Haynes v. First Nat. State Bank of New Jersey
    • United States
    • United States State Supreme Court (New Jersey)
    • July 22, 1981
    ...853 (1952); Wadsworth v. Brigham, 125 Or. 428, 259 P. 299 (1927); In re Friend's Estate, 209 Pa. 442, 58 A. 853 (1904); Rouse v. Branch, 91 S.C. 111, 74 S.E. 133 (1912); Tate v. Camp, 147 Tenn. 137, 245 S.W. 839 (1922); In re Chappell's Estate, 127 Wash. 638, 221 P. 336 (1923); Dutterer v. ......
  • Cocklin v. Watkins (In re Cocklin's Estate), No. 46550.
    • United States
    • United States State Supreme Court of Iowa
    • March 9, 1945
    ...Judge Evans' dissenting opinion. Illustrative cases include In re Friend's Estate, 209 Pa. 442, 58 A. 853,68 L.R.A. 447; Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A.,N.S., 1160, Ann.Cas.1913E, 1296; Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755;In re Keenan's Will, 188 Wi......
  • Commerce Trust Co. v. Weed, No. 46545
    • United States
    • United States State Supreme Court of Missouri
    • November 10, 1958
    ...169; Whitehurst v. Gotwalt, 189 N.C. 577, 127 S.E. 582; In re Friend's Estate, 209 Pa. 442, 58 A. 853, 68 L.R.A. 447; Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A.,N.S., 1160; Sherwood v. McLaurin, 103 S.C. 370, 88 S.E. 363; Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755; D......
  • Barry v. American Security & Trust Co., No. 8288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 19, 1943
    ...52; 42 A.L.R. 847; 17 Ann.Cas. 997; 28 R. C.L. 315. A. L. I. Restatement of Property, Tentative Draft No. 14, Sec. 428. 3 Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A.,N.S., 1160, Ann.Cas. 1913E, 1296; In re Bergland's Estate, 180 Cal. 629, 182 P. 277, 5 A.L.R. 1 In re Friend's Estat......
  • Request a trial to view additional results

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