Williford v. Downs

• Citation: 218 S.E.2d 242,265 S.C. 319
• Decision Date: 15 September 1975
• Docket Number: No. 20093,20093
• Court: United States State Supreme Court of South Carolina
• Parties: Othella D. WILLIFORD, Respondent, v. Johnnie Maude S. DOWNS, Appellants, et al.

Page 242

218 S.E.2d 242

265 S.C. 319

Othella D. WILLIFORD, Respondent, v. Johnnie Maude S. DOWNS, Appellants, et al.

No. 20093.

Supreme Court of South Carolina.

Sept. 15, 1975.

John C. Pracht, Jr., and J. Michael Galloway, Anderson, for appellants.

James W. Logan, Jr., of Watkins, Vandiver, Kirven, Long & Gable, Anderson, for respondent.

NESS, Justice:

The respondent relying upon S.C.Code § 19--238 instituted this action to void the excess of one-fourth of the real value of the estate of Press Williford devised to the appellant and prays for a partition of the tract of land devised.

The complaint alleges: that the parties are the devisees under the will of Press Williford; the will has been duly probated in Anderson County; and that the appellant is the bastard child of the testator. The appellant demurred and answered specifically denying that she is the illegitimate child of the testator.

Upon respondent's motion the trial judge ordered a reference. The appellant argues that she is entitled to a jury trial on the issue of legitimacy. Ordinarily the granting or refusal of an order of reference is not appealable unless the granting of the reference deprives a party of a mode of trial to which he is entitled by law, or the trial judge in refusing a reference did so upon the erroneous belief that the cause of action was a legal one. Rainwater v. Merchants & Farmers Bank of Cheraw, 108 S.C. 206, 93 S.E. 770 (1917). Hence, the issue before the Court is whether the appellant is entitled to a jury trial As a matter of right. If she is not, the appeal should be dismissed.

The only issue which must be decided is whether the case at bar is a legal or equitable action. If it is equitable, the order of reference is not directly appealable. In equity the parties are not entitled, as a matter of right, to a trial by jury. Allen Brothers Milling Company v. Adams, 233 S.C. 416, 105 S.E.2d 257 (1958). Courts of equity have always been permitted to decide issues without the intervention of a jury. White v. Kendrick, 1 Brev. 469 (1805).

This Court has previously held that actions brought to void devises or conveyances as being violative of Section 19--238 are equitable. In Williams v. Halford, 64 S.C. 396, 42 S.E. 187 (1902) the complaint alleged that the testator married in Florida, removed himself to South Carolina, remarried and produced several children of the later marriage. The wife and child of the first marriage sought to prove that the conveyances to the children of the second marriage violated the progenitor of Section 19--238. Although a jury had been used in Williams, the court noted that '(t)he whole, however, was not properly a jury case,--a case on the law side of the court.' p. 405, 42 S.E. p. 190.

The court observed that the chancellor, in his discretion, could empanel a jury. The court reasoned:

'The law intends to uproot at the instance of the lawful wife and children any plan or devise of the husband and father to give more than one-fourth of his estate to his paramour and bastard children. Whoever undertakes this circumvention of the lawful wife and children, or either one of them, undertakes to commit a fraud upon this statute. If the lawful wife and child set on foot proceedings in the courts of the country to upset such illegal contrivances, he usually proceeds upon the equity side of the court of common pleas, because he or she or they do not and Cannot set aside absolutely deeds of conveyance for the benefit of the mistress or bastard children by the husband and father. All that can be done is to have such rights of the lawful wife and children or child, as the case may be, to three-fourths of the estate of the husband and father set apart to them leaving the other one-fourth in the possession of the mistress or bastard child or children, as the case may be. The attempt to invalidate the statute (section 2368) is a fraud upon said statute. To divide lands between parties owning the same in different quantities is to partition lands. Frauds and partition belong to what is known as the equity side of the court of common pleas. This does not prevent the circuit judge from framing issues for trial by jury.' pp. 404--405, 42 S.E. p. 189. (Emphasis added.)

Williams v. Halford, supra, was later cited in Williams v. Newton, 84 S.C. 98, 65 S.E. 959 (1909). In Newton the court dismissed an appeal from a denial of a jury trial when the action was for partition based on Section 19--238.

The complaint in Newton alleged that the testator died seized and possessed of certain real property and personal property and that all of the property was left in trust for the benefit of a bastard child. The wife of the testator sought to have the will adjudged void in so far as it attempted to give the alleged bastard child the benefit of more than one-fourth of the clear value of the estate. The trustee denied the allegations of the complaint and asserted that he held the funds of the estate under the will. The infant defendant's answer was formal, submitting his rights to the protection of the court.

The appellant's first exception was that he was entitled to a trial by jury. The court answered in the negative stating the issue 'is whether the case is one at law, or one of equitable cognizance . . . It is clear that the case is one of equitable cognizance, and that a jury trial is not demandable as of right. This court has so held.' pp. 100--101, 65 S.E. p. 960; citing Williams v. Halford, supra.

Accordingly, in an action for partition based on violation of Section 19--238, a jury trial is not demandable as a matter of right but is reposed in the sound discretion of the trial judge. ¹

Appeal dismissed.

MOSS, C.J., and LITTLEJOHN, J., concur.

LEWIS, J., concurs in result.

BUSSEY, J., dissents.

BUSSEY, Justice (dissenting):

If my brethren were perchance minded to dismiss the appeal in the instant case on the ground that the appellant failed to point out either below or here how and why she was deprived of a mode of trial to which she was entitled by law, I would not be inclined to dissent. When they go further, however, and hold that she was not, as a matter of law, entitled to a jury trial of any issue in this case, I am compelled to dissent.

There is no doubt that normally an action for partition of real property is essentially equitable in nature. Likewise, once the illegitimate relationship is either conceded or established, proceedings for relief under code section 19--238 are equitable in nature. Nevertheless, in any such proceeding the parties are entitled to a jury trial of any issue as to which they are entitled to a jury trial by virtue of the Constitution and/or statutory law of this State.

The primary issue in this case is the title to a ninety-seven (97) acre tract of land located in Anderson County, devised by the decedent to his wife for life with the remainder 'to his adopted daughter, Johnnie Maude Swilling Williford.' The plaintiff seeks a partition of the land asserting the appellant, Downs, to be the illegitimate child of the decedent, Press Williford. What, if any other estate Press Williford had is not reflected by the record.

The appellant Downs vehemently denies the allegation that she is the illegitimate daughter of the deceased and asserts that she has a valid title in remainder in fee to the real estate involved.

In Barnes v. Rodgers, 54 S.C. 115, 123, 31 S.E. 885, 888, the court, by Chief Justice McIver, said:

'Where, in an action for partition, one or more of the defendants sets up an independent title in himself, claiming the sole ownership of the premises sought to be partitioned, the question of title thus presented must first be determined, and that can be done only by the verdict of a jury, unless that mode of trial is waived.'

The foregoing quote has been the settled law of this State from time immemorial. See McCown v. Rucker, 88 S.C. 180, ...