Spann v. Carson

• Decision Date: 17 February 1923
• Docket Number: 11127.
• Parties: SPANN v. CARSON ET AL.
• Court: South Carolina Supreme Court

116 S.E. 427

123 S.C. 371

SPANN v. CARSON ET AL.

No. 11127.

Supreme Court of South Carolina

February 17, 1923

Appeal from Common Pleas Circuit Court of Sumter County; S.W. G Shipp, Judge.

Action to have dower set aside by Mattie S. Spann against Harriet S Carson and others. From a decree for plaintiff, defendants appeal. Decree affirmed.

The following is the decree of the court below:

This is an action for dower. The plaintiff, Mrs. Mattie S Spann, and the late Dr. James C. Spann were lawfully married in the year of 1871, and lived together until his death on the 31st day of October, 1920. Dr. Spann devised to his widow, the plaintiff herein, all of his estate, real and personal, during her lifetime in lieu of dower, but the plaintiff elected to take dower instead, and, on the 15th day of May, 1921, this cause was commenced.

At the time of his death Dr. Spann was seized in fee simple of certain lands, but since this action was started dower has been set off to the plaintiff, with the consent of all parties in interest, in so far as this portion of his estate is concerned. The remainder of his lands, however, were received under the terms of the will of his father, Lawrence M. Spann, who died in 1874. Both of said wills, having been admitted to probate in the office of the judge of probate for Sumter county, are of record in the said office. The terms of the will of the late Lawrence M. Spann affecting the issue in this matter are as follows:

The first clause of said will is as follows: "I give to my son James the plantation where I now live, including the Murray tract, the Graham tract and the few acres of land adjoining which I bought from Frierson and also the two small places at Providence that I bought from Mr. J. K. Pollard, containing about ninety or one hundred acres; also one-fourth of my mill tract near Levi Burkett's.

The sixth clause of said will is as follows: "The balance of my estate, real and personal, I give one-fifth to my son James, one-fifth to my daughter Bettie, one-fifth to my daughter Harriet, one-fifth to my daughter Ella and the other fifth to my two grandchildren Lawrence and Anna Carson."

The sixteenth clause of said will is as follows: "All the estate, real and personal, given or intended to be given hereafter by this will I wish held in trust by my friend William J. Reynolds so that the portions or shares allotted to my son James shall not be subject to his disposal or liable for his debts and the proportions or shares allotted to my daughters shall not be subject to their disposal or liable for their own debts or the debts of their present or any future husbands."

The seventeenth clause of said will is as follows: "Should any of my children die and not have a child or children, who shall marry or attain the age of twenty-one years, all the estate, real and personal, given them by this will I wish equally divided between my surviving children and my two grandchildren Lawrence and Anna Carson, who shall only be entitled to one child's portion."

The question to be decided by this court is whether or not the plaintiff is dowable in lands which passed to her husband, Dr. James C. Spann, under the aforesaid terms of the will of the late Lawrence M. Spann.

The plaintiff contends that, even though her husband's estate expired by his death without issue as provided under the said terms of his father's will, her right to dower therein continues at common law and by the law of the state of South Carolina. In Milledge v. Lamar, 4 Desaus. 617, decided in South Carolina as early as 1816, the same question was adjudicated. In that case lands were given by deed, confirmed by will, to Thomas Lamar and his heirs, "without any condition, except that, should the said Thomas die without any heirs of his body begotten, then, and in that case, the whole of the then remaining property should be equally divided among the children of his brothers." Thomas Lamar died without heirs of his body, but leaving a widow, who instituted proceedings for dower. Her claim was resisted upon the ground, mainly, that the estate of the husband was a fee simple conditional, of which, as it was contended, a wife is not dowable. But the court thought otherwise; Dessausure, Chancellor, delivering the opinion. "To the claim of dower," he observed, "it was objected, that Thomas had not such an inheritable interest in the lands as entitled his widow to dower. But I am of opinion he had. The limitation is to him and to his heirs; but, if he died without an heir of his body begotten, then over to the brother's children. If he had had an heir of his body, he would have inherited. Now the text of Littleton is express that, where a woman taketh a husband seized of such an estate, in tenements, etc., so that any issue she might have by him may by possibility inherit the said tenements, of such estate as the husband hath, she shall have her dower. * * * See Litt. § 53. As then the issue Mrs. Lamar might have had by the said Thomas might have inherited, she is entitled to dower. The widow of a tenant in tail, it was conceded, would be entitled to dower. And so, in my judgment, is the widow of a tenant in fee conditional at common law." The instrument of gift was treated by the court as a will.

The Supreme Court of our state in a comparatively recent case has defined dower in these words: "Dower at common law is an estate for life to which the wife is entitled, on the death of the husband, in the third part of the legal estates of inheritance in lands and tenements of which the husband was seized in deed or in law, in fee simple or in fee tail, at any time during coverture, and to which any issue which the wife might by any possibility have been heir." See Boykin v. Springs, 66 S.C. 362, 370, 44 S.E. 934, 936.

In regard to the trust feature of the will of Lawrence M. Spann as set forth in the sixteenth clause thereof, it is clear that the trustee was imposed with the sole duties of holding the legal title to the property passing under said will to James C. Spann in order that the said beneficiary could not convey his interest in the said estate, and so that his creditors could not subject his interest to the payment of his debts. Now, it is not here contended that a widow is dowable in a trust estate, for without a statute to the effect the authorities are unanimous in holding the opposite view. But, as was attempted in the instant case, a trust created for the purpose of preventing alienation by cestui que trust and subjection of his estate to his debts is dry and inactive, and therefore executed by the statute of this state. See 1 Code of S.C. 1912, p. 1016, § 3673.

This question is very ably treated by an opinion from our Supreme Court in the case of Heath v. Bishop, 4 Rich. Eq. 46, 55 Am. Dec. 654, and so far as I am able to find is the law in this state at the present time. The case of Young v. McNeill, 78 S.C. 143, 59 S.E. 986, may be distinguished from the case at bar, because of the statute which was passed in this state in 1883, providing that no estate in remainder, vested or contingent, shall be defeated by any deed of feoffment with livery of seisin, thereby rendering the trust passive as it eliminated the only duty left for the trustee to perform.

The plaintiff contends that in view of the following facts she is entitled to dower in so much of the land involved herein as passes to Lawrence M. Carson and Mrs. Annie E. Strohecker. These parties conveyed by their deeds to Dr. James C. Spann, husband of the plaintiff herein, during coverture, all their interest and expectancy in the said lands which passed to them under the terms of the will of Lawrence M. Spann. The widow claims that by such conveyances Dr. Spann held in fee simple during coverture one-half of the lands passing to him by the will of his father, Lawrence M. Spann, from time of said conveyances. It is urged that as contingent remaindermen Lawrence M. Carson and Annie Strohecker had the right to convey their interest in their grandfather's estate to James C. Spann, as held in Earle v. Maxwell, 86 S.C. 1, 67 S.E. 962, 138 Am. St. Rep. 1012.

For the reasons above stated I am of the opinion that the plaintiff, Mrs. Mattie S. Spann, is entitled to dower in the lands passing to her husband under the will of his father the late Lawrence M. Spann, and it is the further opinion of court that the conveyances of Annie E. Strohecker and Lawrence M. Carson above referred to, vested a fee-simple estate in Dr. James C. Spann in so

much of the land as was affected by their aforesaid deeds and should certainly entitle the plaintiff to dower therein.

It is therefore ordered, adjudged, and decreed that dower be admeasured and set off to the plaintiff in all of the lands passing to her husband, Dr. James C. Spann, under and by the terms of the will of his father, Lawrence M. Spann.

Purdy & Bland, of Sumter, and D. W. Robinson, of Columbia, for appellants.

George D. Shore, Jr., and Epp & Levy, all of Sumter, for respondent.

GARY C.J.

This appeal involves the construction of a will. The following statement appears in the record:

"This was an action commenced by the plaintiff in the court of common pleas for Sumter county for the purpose of having dower set off and allotted to her in various tracts or parcels of land which were in the possession of her husband James C. Spann, during his lifetime, in some of which he owned the fee simple absolute, and in some the estate or interest which he owned was a matter of dispute. Dower was allotted to her in certain of the tracts, and the right to dower was contested by the defendants in other tracts. The case was heard before his honor, S.W. G. Shipp on an agreed statement of facts, and a decree was made by Judge Shipp on March 30, 1922,

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