Withers v. Jenkins

• Decision Date: 18 March 1881
• Docket Number: CASE No. 1002.
• Citation: 14 S.C. 597
• Parties: WITHERS v. JENKINS.
• Court: South Carolina Supreme Court

14 S.C. 597

WITHERS

v.JENKINS.

CASE No. 1002.

Supreme Court of South Carolina.

Mar. 18th, 1881.

Deed in 1867 to A., in trust for B., the wife of grantor, during her natural life, and then to M., the daughter of grantor, for her sole and separate use, benefit and behoof, and the lawful heirs of her body, share and share alike, not liable for the debts or contracts, and free of the control of any husband with whom she may intermarry, and should M. die before B., leaving children, then in trust for such children, and in case M. remains unmarried, or being childless, then to such person as she may appoint as her heir by her last will. B. died in August, 1868. M. married in January, 1869, and died in November following, leaving issue a son, who died soon afterwards. M. lived with her father until a short time before her marriage, when she removed to another house upon the same premises, occupied by her half-brother, and remained there until her death, but received from the premises no rents or profits. The trustee refused to accept. M. and her husband brought action in 1869 against the grantor for the land embraced in his deed, and alleged that he had been in possession, and in receipt of rents and profits. The grantor then answered, denying the execution of the deed. Held,

1. That B. took a life estate with an equitable estate in fee conditional in remainder to M., with a power to M. to dispose by will of the whole estate if she never married, or died childless.

2. That a husband is entitled to hold, as tenant by the curtesy, lands in which his deceased wife was seized of a fee conditional.

3. That when curtesy would attach to a legal estate, it should also attach to an equitable one of the same quantity and character, but in both four things are requisite-marriage, actual seizin of the wife, birth of issue and death of the wife; and curtesy may be defeated by the terms of the deed, or by any circumstance which would have determined the wife's estate, if she were living.

4. That the husband of M. was not entitled to an estate by curtesy in this case, because M. had no seizin of the land here granted, as she was never in actual possession, nor ever received any rents and profits.

5. And further, his curtesy was excluded by a necessary implication arising from the terms of the deed.

6. The constitution of 1868 does not affect the questions here arising under this deed, which was executed in 1867.

7. Wright v. Herron, 6 Rich. Eq. 407, approved.

Before PRESSLEY, J., Richland, November, 1878.

On November 6th, 1867, Samuel Jenkins conveyed to Francis Lopez, his executors and administrators, a half-acre lot in the city of Columbia, upon the following trusts:

In trust, nevertheless, to and for the following uses and purposes, that is to say, for the sole and separate use, benefit and behoof of my said wife, Mary Jenkins, for and during the term of her natural life, provided she remain a widow in the event of the death of me, the said Samuel Jenkins; and after the death or marriage of my said wife, Mary, then, in trust, for the sole and separate use, benefit and behoof of my daughter, Mary Jenkins, and the lawful heirs of her body, share and share alike, not liable for the debts or contracts, and free of the control of any husband with whom she may intermarry. And should my said daughter, Mary, die before my said wife, Mary, leaving a child or children, then in trust for such child or children, share and share alike; and in case of my daughter remaining unmarried or being childless, then in trust to such person as she may appoint as her heir by her will and testament duly executed, notwithstanding any future coverture.

Samuel, with his wife and daughter, resided upon this land until the wife's death on August 16th, 1868. Mary, the daughter, remained with her father for some time afterwards, when, to make room for boarders, she moved into a house on the same land occupied by her half brother, Mott. There she married Thomas Withers in January, 1869, and lived there with her husband until her death in November, 1869. Samuel has continued to live in the dwelling-house on the land. Mary left issue a son, who died in March, 1870. Lopez refused to accept the trust or to act as trustee. Neither Lopez, Mary Withers or Thomas Withers ever received any rents or profits from the land, upon which were several houses.

In April, 1869, Withers and wife filed their bill of complaint against Samuel Jenkins and Francis Lopez, claiming that Mary Withers, upon the death of her mother, “became entitled to the use and enjoyment” of the said lot of land; and that the said Samuel Jenkins, since that time, had been in the possession of the principal part of the said lot, and in the receipt of the rents and profits of the same; and praying, in substance, that her rights and interests in and to the said lot of land might be protected and enforced.

The answer of Samuel Jenkins to the said bill of complaint denied the legal execution of the said deed, and contested all the rights and interests under it claimed by the said Mary Withers. Lopez was never served with process. Mary Withers having died, Thomas Withers filed a supplemental complaint against Samuel Jenkins, setting out the facts here stated, and claiming to be tenant of this land for life by the curtesy of England; that Samuel Jenkins had had possession since the death of Mary Withers, and demanding possession and rents and profits. The defendant answered; his defences are stated in the referee's report.

All issues of law and fact were referred to F. W. Fickling, Esq., who made the following report:

The issues of law and fact in this action have been referred to me.

The issues of fact are-

1. Whether the alleged deed referred to in the pleadings herein, dated November 6th, 1867, and purporting to have been made by the defendant, Samuel Jenkins, to one Francis Lopez, upon certain trusts therein mentioned, was duly executed and delivered by the said Samuel Jenkins.

2. Whether Mary Jenkins, the daughter of the said Samuel Jenkins, at the date of her marriage with the plaintiff, Thomas Withers, was above the age of twelve and under the age of sixteen years.

3. Whether the said plaintiff, Thomas Withers, did contract matrimony with Mary Jenkins, the daughter of the defendant, Samuel Jenkins, against the will of the said Samuel Jenkins.

I find-

1. That the said deed was executed and delivered by the said Samuel Jenkins.

2. That the said Mary Jenkins was, at the date of her marriage with the plaintiff, Thomas Withers, above the age of twelve and under the age of sixteen years.

3. That the said plaintiff, Thomas Withers, did not contract matrimony with Mary Jenkins against the will of her father, Samuel Jenkins.

The evidence upon which these findings are based is herewith submitted and made part of this report.

The only issues of law involved in the action are: First. What estate Mary Jenkins took in the property under the deed; and, Second. What estate her husband took upon her death. And I determine these issues of law as follows:

First. That Mary Jenkins took under the deed in question an estate in fee simple conditional. Second. That having had issue born, who could have inherited the estate according to the form of the deed, and having died, leaving surviving her her husband, Thomas Withers, that the said Thomas Withers takes an estate for life, in the premises described in the deed, as tenant by the curtesy of England, of his deceased wife, Mary.

It was proved to my satisfaction that the annual value of the premises was $200 per annum. I therefore order and adjudge that the possession of the said premises be delivered to the plaintiff, Thomas Withers, and if the same be refused, that the plaintiff have a writ of habere facias possessionem, which the sheriff of Richland county is hereby required to execute. Second. That the plaintiff, Thomas Withers, do recover from the defendant, Samuel Jenkins, the sum of $1841.66, for mesne profits from August 16th, 1868. Third. That the costs and disbursements of the proceedings be, as agreed by the parties, made a charge and lien upon the property involved in the action.

And I direct that the plaintiff have judgment accordingly.

The case came to trial at the Circuit Court upon exceptions by defendant to the referee's report. The Circuit decree is as follows:

On November 6th, 1867, defendant conveyed his lot in Columbia to Francis Lopez, in trust for defendant's wife, Mary, and after her death in trust for the sole and separate use of his daughter Mary and the lawful heirs of her body, with other provisions hereafter stated.

The daughter surviving her mother married the plaintiff and bore a child, which, surviving her, died before this action was commenced. Plaintiff claims curtesy in said lot, alleging seizin thereof by his wife in her lifetime. Of such seizin the only proof is that she remained there after her mother's death in the house with her father, and afterwards in an out-house with her half brother. The trustee did not take or demand possession of the premises, and no rent for the same was ever paid to her. As the referee has not reported any finding of the fact of her seizin, it would be necessary to recommit the case to him, if, under the deed, it be held that such seizin would entitle the plaintiff to curtesy.

Defendant claims that his daughter was not sixteen years old at the time of her marriage, and alleges that he did not consent to the same. If this were so, then, under the statute of Philip and Mary, the husband, by such marriage, could acquire no interest in his wife's estate. But the referee finds that the marriage was not without the consent of the defendant, and I sustain that finding.

The remaining question is one of law, not yet decided in this state. Before the case of Wright v. Herron, many of us agreed with Chancellor Kent that our act of 1791 abolished curtesy in this state. On that point the Court of...