Rouse v. Branch

• Decision Date: 25 March 1912
• Citation: 74 S.E. 133,91 S.C. 111
• Parties: ROUSE et al. v. BRANCH et al.
• Court: South Carolina Supreme Court

74 S.E. 133

91 S.C. 111

ROUSE et al. v. BRANCH et al.

Supreme Court of South Carolina

March 25, 1912

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 bequest to a third person in case of breach of the condition, then if the legatee controvert the will, his interest will cease and vest in the other legatee. The exception is discussed by Sir William Grant in Lloyd v. Branton, 3 Mer.

117. He says that different reasons have been assigned by different judges for the operation of a devise over; some holding that it was a clear manifestation of intention that the declaration of forfeiture was not merely in terrorem, and others that it was the interest of the devisee over which made the difference. But all agree that there must be a valid devise over, in order to defeat the legacy." He declared that the said clause of the will was null and void. There was an appeal to the Court of Appeals, in equity, and the case was heard by Chancellors Johnston, Dunkin, Dargan, and Wardlaw, the opinion of the court being delivered by Chancellor Wardlaw, who, after stating that said court was content with the chancellor's conclusion, and, in general, with his reasoning, although there was not entire concurrence of the members of the court in the same views, used the following language:

"Without intention or authority to commit the court to this extent, I express my own opinion, in which Chancellor Johnston fully concurs, that a condition subsequent of this description is void, whether there be a devise over or not, as trenching on the 'liberty of the law' (Shep. Touch. 132) and violating public policy. In Morris v. Burroughs, 1 Atk. 404, Lord Hardwicke held such a condition to be clearly in terrorem, and no forfeiture could be incurred by contesting any disputable matter in a court of justice. In Powell v. Morgan, 2 Vern. 91, cited in the circuit decree, it was adjudged that breach of such condition involves no forfeiture, where there is probabilis causa litigandi. In one of the latest cases on this subject, Cooke v. Turner, 15 M. & Wels. 727, a condition was supported as valid that, if the devisee should dispute the sanity and competency of testator to make a will, although testator has been found by inquest to be a lunatic, or should refuse,

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