Swandale v. Swandale
| Decision Date | 22 October 1886 |
| Citation | 25 S.C. 389 |
| Parties | SWANDALE v. SWANDALE. |
| Court | South Carolina Supreme Court |
1. Under the constitution as amended in 1882, a debtor, if the head of a family, is entitled to a homestead in any lands which he may possess, whether it is, or has been, his family residence or not.
2. Real property in which such debtor had an interest having been sold for partition, he is entitled to a homestead out of his share in the proceeds of the sale.
3. A distributee is entitled to a personal property exemption out of his share (if any) of the intestate's personal estate.
4. While the Court of Common Pleas cannot admeasure and lay off homestead, it has jurisdiction to determine the question of right to the exemption claimed, when necessary to the determination of an action properly pending in that court.
Before COTHRAN, J., Greenville, July, 1885.
The case is fully stated in the opinion of this court.
Mr. A. Blythe , for appellant.
Mr. M. F. Ansel , contra.
Simon Swandale died sometime in 1884, leaving a will, by which in the first clause he gave all his property, of every kind, to his wife and children (of whom G. Tupper Swandale is one) in equal shares. His property consisted mainly of a large hotel in the city of Greenville, known as the Mansion House, with the furniture therein, and his private residence and household and kitchen furniture. By the third clause of his will he directed his executors to sell the property known as the Mansion House, and by the fourth clause he provides that the executors may sell all the remainder of his real estate and after the whole has been sold he directs that the proceeds be distributed amongst his wife and children as provided in the first clause of the will. The plaintiff, who is the widow of the testator and his sole qualified executrix, sold the Mansion House for the sum of seventeen thousand dollars and the private residence for the sum of thirty-three hundred dollars, leaving the personal property unsold.
The testator was adjudged, several years before his death, to be a person of unsound mind, and the appellant, G. Tupper Swandale, was duly appointed and acted as his committee, and at the time this action was commenced had not rendered his final account as such committee. The appellant is the head of a family and was, at the time of the testator's death, as well as before, living with said testator in the dwelling house above spoken of, and continued to reside there until the same was sold. He has contracted debts to an amount exceeding his interest in his father's estate, and some of his creditors, having reduced their claims to judgment, levied upon his undivided interest in the real estate before it was sold.
The plaintiff, finding herself embarrassed in the administration of the estate as to the interest of the appellant, brought this action against him, making all his creditors parties, asking, amongst other things, that the appellant be required to account as committee, and that his interest in the estate may be ascertained and determined. The appellant answered, setting up his claim of homestead, which is resisted by his creditors, and this is the only issue presented by this appeal. This claim was rejected by the Circuit Judge, but for what reason does not appear, as only extracts from his decree are given in the " " Case." It does appear, however, that the Circuit Judge determined that the interest of the appellant in the real estate must still be regarded as realty, notwithstanding the sale by the executrix, which did not operate as an equitable conversion into personalty; and to this part of the decree no exception has been taken by any of the parties.
It is stated in the " Case" that all of the debts of appellant were contracted " since the first of January 1880," and as the amendment to the homestead clause of the constitution of 1868 was not adopted until December 13, 1880, this statement would leave it uncertain whether the question in this case was to be determined under the provision of the constitution of 1868, or under the amendment of 1880. This uncertainty has, however, been removed by the written admission of counsel, herewith filed, to the effect that all the debts were contracted since the constitution was amended, and therefore the question is to be determined under the homestead clause as it now...
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