Thomason v. Hellams, 17417
Decision Date | 17 April 1958 |
Docket Number | No. 17417,17417 |
Citation | 233 S.C. 11,103 S.E.2d 324 |
Parties | Gary L. THOMASON, Appellant, v. Lillie N. HELLAMS, Individually and as Executrix, Respondent. |
Court | South Carolina Supreme Court |
Blackwell, Sullivan & Wilson, Laurens, for appellant.
O. L. Long, Laurens, Melvin K. Younts, Fountain Inn, for respondent.
This case relates to the will of J. H. Hellams, late of Laurens County. The items of it in question are the third and fourth, which follow:
Item 3: I will, devise and bequeath unto my beloved wife, the said Lillie N. Hellams, for and during the term of her natural life, all of my real estate; unless it becomes necessary for her support and comfort, in which case, and she to be sole judge of the necessity, she has full power to sell any part or the entire real estate holdings without the order of any court and is hereby empowered to execute good fee simple title to the same or any part thereof.
Item 4: If at the time of death of my said wife there is remaining any of my real estate it is my desire and I so direct that the same go to my nephew, Gary L. Thomason, now residing at Jonesville, S. C., in fee simple forever.
The appeal is from sustention of demurrer to the complaint, the material allegations of which may be summarized as follows:
The devised real estate consists of fifty-four acres of land with a residence, three tenant houses and a sizable cotton acreage. It is located in the town of Fountain Inn which is of rapid population growth, industrial development and increasing values of real estate. It is capable of subdivision into small tracts or lots which would sell for more than if it were sold as a whole. The monthly income from the tenant houses and the cotton acreage should be more than $125 and if that amount is insufficient for the support and comfort of the defendant, lots could be sold to supplement the income. The property is worth at least $20,000 and it will not be necessary to sell the dwelling and surrounding acreage for many years unless the defendant should have unforeseen needs for her support and comfort. Prior to his death testator sold lots in and near the area of this property, as the defendant has done since. Testator did not intend that the defendant should so soon after his death sell the entire property but that his widow, the defendant, should occupy the home during her life. She is about to sell all of the property to one of her relatives for $12,000 which is less than its value, which would be harmful to plaintiff and defendant and not in accord with the testamentary intention. Judicial construction of the will is necessary. If it should be construed as giving defendant the power to sell all of the property immediately, quoting from the complaint, 'the proceeds should be stampted with a trust in favor of plaintiff and kept separate and distinct from other personal property and that any unused portion for her support and comfort should belong to plaintiff.' Plaintiff should be given the refusal to purchase and pay cash for any part of the property which is sold by the widow, at a price for which she has agreed to sell it to her relatives or others.
The defendant interposed a demurrer to the complaint upon general grounds, which was sustained, the complaint dismissed and lis pendens cancelled. Appeal by plaintiff followed.
It was held that the will is plain and unambiguous and there is no room for construction or interpretation of it. The court improperly took into consideration facts, such as the very advanced age of the defendant and her frail health, which were disclosed in argument; but they were not in the complaint and will not be considered by this court. And the facts alleged in the complaint must be taken as true on demurrer. The injunctive relief which was sought was denied for the reason that it did not relate to existing facts.
A deed, devise or bequest for life with power of disposition and remainder to another (of such property as is not disposed of by the first taker) is valid. Dye v. Beaver Creek Church, 48 S.C. 444, 26 S.E. 717, 59 Am.St.Rep. 724; Lynch v. Lynch, 161 S.C. 170, 159 S.E. 26, 80 A.L.R. 997; Hamrick v. Marion, 176 S.C. 361, 180 S.E. 213; Rogers v. Rogers, 221 S.C. 360, 70 S.E.2d 637; Shevlin v. Colony Lutheran Church, 227 S.C. 598, 88 S.E.2d 674. Annotations, 36 A.L.R. 1177, 76 A.L.R. 1153. In Forrest v. Jennings, 107 S.C. 117, 92 S.E. 189, this rule was applied, although the will there did not expressly limit the first taker to a life estate; nor did it in Rogers v. Rogers, supra, or in Shevlin v. Colony Lutheran Church, supra. And see Andrews v. Roye, 12 Rich. 536, and the review of it in 17 A.L.R.2d at page 205.
In Hamrick v. Marion, supra [176 S.C. 361, 180 S.E. 215], a similar will to that at bar was under construction. The court adopted as its judgment the circuit decree, from which the following is quoted, applicable here: The Hamrick case sustained a mortgage as within the power of disposition; contrary result was reached under the peculiar facts of the earlier case of Sheffield v. Grieg, 105 S.C. 219, 89 S.E. 664.
In Moody v. Tedder, 16 S.C. 557, question was raised as to the propriety of the sale of slaves under a devise and bequest to testator's widow for life with power, quoting, 'to use and dispose of so much thereof as may be necessary for her comfortable support and maintenance in such style and manner as she may see fit.' The following extracts from the opinion of the court are quite apposite to the controversy in hand:
...
To continue reading
Request your trial-
Burnett v. United States
...vivos and there the proper construction of the term "to use * * * as she desires", taken in its context, arises. Thomason v. Hellams (1958) 233 S.C. 11, 18-19, 103 S.E.2d 324, is cited by the defendant as conclusive that, under a power such as that given the widow in Item III, there is no r......
- State v. Kilgore
-
Blackmon v. Weaver, 4030.
...372, 374-76, 182 S.E.2d 730, 731 (1971) (finding a life estate with a complete power to dispose and consume); Thomason v. Hellams, 233 S.C. 11, 15, 103 S.E.2d 324, 325 (1958) (holding that "[a] deed, devise or bequest for life with power of disposition and remainder to another (of such prop......
-
Citizens and Southern Nat. Bank of S. C. v. Auman, 19481
...of the fee in the donor. We have recognized that a life estate with the power of disposal may be validly created. Thomason v. Hellams, 233 S.C. 11, 103 S.E.2d 324. It is clear that the donor gave to the trustee only such estate as necessary to effectuate her purpose of providing for the lif......