Williams v. Newton
| Decision Date | 05 July 1910 |
| Citation | 68 S.E. 693,86 S.C. 248 |
| Parties | WILLIAMS v. NEWTON et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Marlboro County; J. C Klugh, Judge.
Action by Mary B. Williams against R. C. Newton and others. From a judgment for plaintiff, defendants appeal. Affirmed.
See also, 84 S.C. 98, 65 S.E. 959.
The following is the decree of the circuit judge and the exceptions thereto:
Frank Williams and Mary Blaine Gillespie were married in West Virginia about the year 1868, and lived together for many years. One child was born to them, who died many years ago after reaching maturity. About the year 1887 Frank Williams left his wife and daughter and engaged in railroad construction in several states, and finally about 1890 or 1891 he came to South Carolina and built the bridge of the C S. & N. R. R. over the Great Pee Dee river. While engaged in this work he formed a little illicit connection with a woman named Mary Jane Quick, which resulted in the birth of an illegitimate son, Frank Quick, the principal defendant herein. Williams lived a depraved life thereafter and seems to have absolutely deserted his wife and children. They were reduced to straits for a livelihood in their distant home and kept a boarding house where the daughter deprived of a father's protection and restraining care, fell into evil ways. The wife, according to the testimony of Frank Williams' nephew, J. S. Williams, who lived near her in West Virginia, as well as other witnesses, her neighbors, bore a good reputation and lived a correct life. Yet Frank Williams, in his voluntary absence from them, denounced both his wife and daughter to strangers with foulest accusations and in vilest language. He repeatedly expressed his determination that they should have nothing of his property, and he appears to have cherished this as a fixed purpose and set about a concerted plan to carry it out. He purchased two tracts of land in Marlboro county, where he made his home, and had them conveyed to C. S. McCall as trustee, to hold "for the sole" use and benefit of the said Frank Williams, allowing him the absolute "use and control thereof, and make title to same to whomsoever the said" Williams may at any time direct, either by written indorsement thereon "during his life or by his last will duly made." This deed bears date July 27, 1900. The said Frank Williams executed his last will on January 8, 1902, and having died shortly thereafter, said will was duly admitted to probate. By his last will he appointed C. S. McCall his executor and directed him to "take charge of any property of which I may die seised" and possessed, "or of which I may have the power of disposition, to be disposed of as hereinafter provided for." Then referring to the deed above set out, the testator declared his intention that the will be construed in connection with and as supplementary to the deed, and in case of conflict between the two documents that the manifest intention of the deed shall prevail. By said will he, in effect, gives in trust for the use and benefit of Frank Quick aforesaid and his heirs all his property of every kind, including the real estate mentioned in the said deed, with contingent remainder over to William Williams, the testator's brother.
This action was commenced in September, 1904, against C. S. McCall, as trustee and executor, Frank Quick, and William Williams. C. S. McCall died shortly afterwards and R. C. Newton was appointed trustee by the court and substituted as a defendant. The complaint sets forth two causes of action, first, for dower; second, to annul said will in so far as it attempts to give to the bastard son of the testator more than one-fourth part of the real, clear value of the estate of Frank Williams. On demurrer that these two causes of action are improperly united the court sustained the demurrer and ordered that the cause be divided into two separate and distinct actions. On appeal by defendants this order was affirmed. 82 S.C. 227, 64 S.E. 219.
The case was tried before me on the second of said actions. The trustee alone seems to have answered to the merits. His answer puts in issue practically all the allegations of the complaint, and as special defense alleges that the plaintiff has assigned and transferred all the interest claimed by her in this case to another, and that she has no legal status in this action. With reference to this last-mentioned defense it may be said here that no competent evidence was offered in support of it. The only testimony offered upon it was that R. C. Newton, the defendant, who was permitted to testify over repeated objections of plaintiff's counsel, to certain statements made to him by his own attorney of declarations made to said attorney by the plaintiff. This was bold hearsay and the objections to it should have been and are now sustained. This defense is overruled.
The case was referred to a referee to take and report the testimony and "to make a statement of the account in accordance with the contention of each party and report the same." From this order the defendants appealed, and on motion, the appeal was dismissed. 84 S.C. 98, 65 S.E. 959.
The opinion and judgment of the Supreme Court dismissing the said appeal was filed October 29, 1909. Promptly thereafter the referee proceeded to hold reference for the purpose of executing the said order of reference. After devoting two days to the case and taking such testimony as was offered by plaintiff, the defendants offering no testimony, the plaintiff moved the referee to adjourn the reference and report the testimony in time for a hearing at the then approaching term of court. This motion the referee refused, and thereafter the plaintiff moved the court, on due notice, to vacate the order of reference and to proceed with the trial of the case upon the testimony already taken in the case de bene esse and that taken by the referee, together with much as might be offered at the trial by either side. This motion was heard by me. The history of the litigation in the case impressed me that the defendants were delaying the trial of the cause by every practicable device. Frank Williams died in January, 1902, nearly eight years ago. This action was commenced in September, 1904, and has been pending more than five years with no other progress than the determination of two dilatory appeals by the defendants, both of which have been decided against them, and the partial taking of the testimony. The unreadiness of the defendants or their unwillingness to proceed prevented the referee from completing his duties under the order of reference in the two days which he devoted to the case. The plaintiff is a woman advanced in years and said to be in needy circumstances. The peculiar nature of the case and the provisions of the statutes make it highly probable that her rights, if she has any, will be entirely lost unless determined in her lifetime--certainly any benefit to her will be. She has been thwarted by the dilatory tactics of the defendants for five years since she began to assert her rights. The delay which has already supervened is a reproach to the administration of justice. Further unnecessary delay would be a denial of justice. These considerations constrained me to order a final reference and report by the referee and the trial of the case before me, under the provisions of the order which appears in the record.
The testimony fully establishes the material allegations of the complaint and brings the case clearly within the provisions of the statute of 1795 (5 St. at Large, p. 271, § 4; sections 2368 and 2487 of Civ. Code, 1902). The fact that the testator resorted to the device of a trust and the intervention of a trustee can make no difference in the result. Gore v. Clarke, 37 S.C. 537, 16 S.E. 614, 20 L. R. A. 465, and cases therein cited. This seems to have been a part of his plan to evade the statutes and cut his wife and children out of any part of his estate. The daughter seems to have died before her father, so that the wife alone now invokes the statute which will interfere with the disposition of his property by the testator.
It was long ago determined by the court, and the decision has been reaffirmed in many subsequent cases, that the...
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