Smith v. Williams

• Decision Date: 23 September 1927
• Docket Number: 12277.
• Parties: SMITH v. WILLIAMS et al.
• Court: South Carolina Supreme Court

139 S.E. 625

141 S.C. 265

SMITH v. WILLIAMS et al.

No. 12277.

Supreme Court of South Carolina

September 23, 1927

Appeal from Common Pleas Circuit Court of Spartanburg County; M. L Bonham, Judge.

Action by J. B. Smith against M. J. Williams and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The following is the decree of the trial judge:

"This is an action for the partition of a tract of land situated in Spartanburg county, alleged in the complaint to contain about 124 acres. It came before me for hearing at the March, 1925, term of the court of common pleas for Spartanburg county, on exceptions to the report of the master, to whom it had been referred to hear and determine all the issues of law and fact. He found in favor of the plaintiff's right to partition, took an accounting of the rents and profits, stated the accounts between the parties and passed upon the question of improvements claimed by the defendant, Mrs. Williams. The history of the events which culminated in this action is clearly stated by the master about as follows:

Hugh Smith died about August 5, 1900, and his widow, now Mrs. M. J. Williams, formerly Mrs. M. J. Smith, qualified as his administratrix. At the time of his death Hugh Smith was seized and possessed of a tract of land containing about 72 acres, which is a part of the tract of 124 acres, described in the complaint. About 11 years before his death Hugh Smith had made a deed to the remaining 52 acres comprising the tract in litigation by which he conveyed the said 52 acres to J. B. Moore. Were it not for a proviso following the description of the land in this deed, there would be no doubt that it conveyed nothing more than a life estate to J. B. Moore alone, with the entire reversion remaining in Hugh Smith. By the proviso, however, the grantor, Hugh Smith, stipulated, 'That after the death of James B. Moore and Mrs. M. A. Moore then the right, title and interest in the above lands to belong to me and my wife, M. J. Smith, and in the event J. B. Moore and wife should wish to sell, then the value in this place to be invested in another farm with provision that at their death the property shall belong to me and my wife (M. J. Smith) and that I shall have the refusal of the fifty-two acres if it should be sold.'

At his death Hugh Smith left surviving him as his sole heirs at law, his widow, Mrs. M. J. Smith, and four children, Mamie Haddon, Newton Smith, Van Buren Smith, and Pearle Smith. Pearle Smith died intestate about 1905, leaving as her heirs at law her husband, C. L. Wood, and two children, Annie Wood Lawton and Clyde L. Wood.

So far I have followed the narrative of the master.

The defendant Mrs. M. J. Williams, by her answer, alleges that soon after the death of her husband, Hugh Smith, she called together her children and exhibited to them a paper which she said was written and signed by her husband in his last illness, expressing the desire that his property be kept together during the lifetime of his wife; that she and her children entered into a family agreement by which she bound herself to pay the debts of the estate, and the children agreed that she should have the use of the property for her lifetime; that she has faithfully carried out her part of the family agreement, has largely increased the value of the property, and has made valuable improvements on it. She further claims that she is the owner of the 52-acre tract.

The complaint and this answer make the real issues. The cardinal questions are: What interest has Mrs. Williams in the 52 acres? And was there a family agreement? Is it valid and binding?

The master held, in regard to the Williams interest in the e 52-acre tract as follows: 'Moore being dead and his estate terminated, I think the effect of the proviso is the same as if Hugh Smith had originally made a deed "to me and my wife, M. J. Smith." Without words of limitation, such a deed could not have conveyed to M. J. Smith more than a life estate, and without words of survivorship could not have extended to more than one-half the land. I therefore find that M. J. Williams, in addition to her estate of inheritance, has a life estate in an undivided one-half of the 52 acres described in the deed, the reversionary interest in that half; and the fee in the other half remained in Hugh Smith.'

I cannot concur in this finding of the master. The fee in the whole 52 acres never left Hugh Smith. He never divested himself of it. When the Moores died and their life estate ended, then ensued the life estate provided for Mrs. Smith. The master concedes that she took a life estate but limits it to one-half. I think he is in error. Hugh Smith could not take a life estate in any part of it because he held the fee to the whole. It may be that the grantor intended to give his wife a half interest in fee in the property. It is probable that he intended that the land should revert to him and his wife in fee simple in equal parts. But the deed was inexpertly drawn and fails of its purpose. The estate on the death of the Moores reverted to Hugh Smith and his wife; he had the fee and she the life estate; at her death it reverts to his estate, he being dead. 'A reversion, or estate in reversion, is an estate, the owner of which, without disposing of the estate itself, has deprived himself of the right of personal possession by creating of this estate in favor of another. The fee simple remains the same after the creation as before, but is without the right of immediate possession because of the transfer of the lesser estate. The possession will, however, revert upon the termination of the lesser estate, and for this reason the fee is said to be an estate in reversion.' 1 Tiffany on Real Property, 467. 'At common law whenever a greater estate and a lesser coincide and meet in one and the same person, without any intermediate estate, the lesser is immediately annihilated, or, in the law phrase, it is said to be merged; that is, sunk or drowned in the greater." 1 Tiffany on Real Property, 89; 2 Blackstone, 177; McCreary v. Coggeshall, 74 S.C. 42, 53 S.E. 978, 7 L. R. A. (N. S.) 433, 7 Ann. Cas. 693.

So here, the life estate could not, in whole or in part, be vested in Hugh Smith, the owner of the fee. It must, therefore, upon the falling in of estate of the survivor of the Moores, have vested in Mrs. M. J. Smith, in the whole tract, and, as she has survived her

husband, the grantor, the reversion is to his estate at her death.

It is advanced that if it be held that Mrs. Williams has a life estate in the whole 52-acre tract, nevertheless partition may be made under the provisions of section 5292, Code 1922, vol. 3. The position would be tenable if there were one or more persons jointly interested with Mrs. Williams in the life estate. But there are none. She cannot by this process be deprived of the enjoyment of her life estate. Cannon v. Lomax, 29 S.Ct. 369, 7 S.E. 529, 1 L. R. A. 637, 13 Am. St. Rep. 739.

Is plaintiff entitled to partition of the other tract, the 72-acre tract of which Hugh Smith died seized and possessed? This depends upon the answer to the questions: Was there a 'family agreement' between Mrs. Smith (now Mrs. Williams) and her children, by the terms of which she was to pay the debts of Hugh Smith's estate and remain in possession thereof till her death? If there was such an arrangement, was it valid? Was such an agreement made? There is in evidence a paper purporting to have been written by Hugh Smith in his last illness in which he expressed the wish that his wife have the property for her lifetime. The master admitted it in evidence 'for what it is worth.' It has no testamentary character, nor such force and effect, but it has potential bearing in the solution of the question, was there a family agreement? The master excluded the testimony of Mrs. Williams and Newton Smith on this subject. I think it was admissible. Certainly that of Newton Smith was against his interest. From all the evidence it is certain that soon after her husband's death, Mrs. Smith and her children had a conference; she and Newton testify that she then exhibited the paper written by Hugh Smith; that it was agreed that she pay the debts and keep the property for her lifetime. Their testimony is clear and positive. That of Mamie Haddon and the plaintiff is vacillating, contradictory, and wholly unsatisfactory. Mrs. Lawton, the daughter of Pearle Wood, now deceased, by her answer admits the agreement and desires that it be upheld. It would be clearly to her interest to have the estate partitioned now, but she prefers that the agreement with her grandmother, which her mother made, be kept inviolate. It is needless to analyze the evidence; a calm perusal of it must satisfy one that such an agreement was made. Was it a valid agreement? It is urged against it that it is obnoxious to the statute of frauds. I cannot discover any section of that statute which it violates. But if it were ever obnoxious to the statute the defect has been cured by the full and faithful performance of her part of the agreement by Mrs. Williams.

It is urged further that the agreement is invalid because three of the children were minors and are not bound by their contract. It is true that the plaintiff and Newton and Pearle Wood were minors when the contract was made, though Pearle was married. She attained her majority before her death and never repudiated the arrangement. Her daughter, Mrs. Lawton, who is sui juris, stands for its support; Newton openly supports; Mamie Haddon has supported it, though she now backs the plaintiff in his effort to repudiate. Her testimony is most unsatisfactory and does her little credit; she shuffles and dodges all the way. And, lastly, the testimony of the plaintiff is a mass

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