Opinion
13973
January 10, 1935.
Before JOHNSON, J., Sumter, April, 1934. Affirmed.
Action by Eliza Workman against Mrs. O.G. Dorn and others. From a decree in favor of plaintiff, named defendant appeals.
The decree of the trial Court directed to be incorporated in the report of the case is as follows:
The above-styled cause comes on to be heard before me upon the pleadings and the report of the Master.
I find that the proceedings have been regular, the defendants all duly served, the infant defendants are represented by regularly and properly appointed guardian ad litem who has answered in their behalf.
On motion of Lee Moise, attorneys for the plaintiff, it is ordered that the report of the Master be and same is hereby confirmed except in such particulars as the same may be modified or changed by the terms of this decree.
I find that the plaintiff entered into an agreement to sell and convey to the defendant, Mrs. O.G. Dorn, the land described in the complaint at and for the price set forth in the complaint. That this is a part and parcel of the tract of land which was devised by the last will and testament of Henry T. Abbott to the plaintiff, who, at the death of testator, was unmarried, "for and during her life and at her death to her children then living, the child of any deceased child taking the parent's share, if none be then living then to those of my kindred who would be entitled to my property under the Statutes of Distribution of South Carolina then of force."
The plaintiff is in possession of the tract of land, which from a survey referred to in the complaint appears to contain 520 acres, and the plantation has depreciated in value because of poor farming operations; the buildings are in a dilapidated condition and need repairs, and the income derived from the plantation has been inconsiderable.
I find that the taxes are unpaid for the year 1933 and amount to $183.30, and the taxes for the prior years are unpaid and amount to $289.20, and the plaintiff alleges that the land will be sold for taxes unless some arrangements can be made to pay the same.
I find that any sale of the land for taxes would only be the life estate of the plaintiff and the rights and interest of the other parties to the action cannot be affected by tax sale, but the plaintiff alleges that her children are dependent upon her for a support; that all of her children are parties to this action; that her daughter Rose Abbott Workman is entirely dependent upon the plaintiff for a support; that her daughter Frances Douglas Workman is a student at Coker College, and that she is indebted to Coker College for the expenses incurred in 1932; that the said Frances Douglas Workman obtained a scholarship in 1933, but that she has to make some payments to the said college; and that at the time of this action the said Frances Douglas Workman was in her third year at college and this daughter should be educated. I find that the plaintiff's other two children are attending the public schools in Sumter, S.C.; they need clothing; they need to have other expenses paid, and all of these facts the plaintiff shows as matters of necessity for the sale and disposition of part of the premises passing under the will of the testator, and in which the plaintiff has a life estate.
Now it is the plaintiff's duty to support her children if she can and has the means. If she has not the means, then the children's property should support them; that is a general statement of the law as I understand it.
The plaintiff alleges that the total rentals received from the land in 1932 were less than $400.00, and at the time of the commencement of this action it seemed that the plaintiff would collect less that $400.00 in 1933.
I find that there are seven tenants houses and barns on this plantation; that they are in a dilapidated condition and need repairs, and will become absolutely uninhabitable if not repaired, and at the time of the commencement of this action it was estimated that it would cost about $150.00 to put them in repair.
The plaintiff alleges that she has a policy of life insurance that she has been obliged to carry, and that she has heretofore had to mortgage her life estate in the said plantation for $300.00; that the interest has not been paid on that mortgage and this policy of life insurance is for $500.00 and is held as additional security by the holder of the mortgage of her life estate; and that mortgage was given to secure money borrowed for the benefit of her children.
The plaintiff states in the complaint that she realizes her life estate in said plantation and the policy of life insurance may be sold for the purpose of paying her debts, and I hold that the Court would not have jurisdiction to direct a sale of part of the land passing under testator's will for the purpose of paying the debts of the life tenant, but the allegation here, and the Master finds it to be a fact, and I concur in that finding, that the debt was incurred by the plaintiff for her children, and the money used in their maintenance and support.
The plaintiff alleges that she owns a tract of 50 acres in fee simple, and in order to support her children she was forced to mortgage that tract of land and did borrow $1,200.00, and that she has been unable to pay interest for two years and has been unable to pay the taxes on that tract of land and foreclosure of the mortgage is threatened.
It is unfortunate that the plaintiff is affected with a disease of the eyes and much to be regretted, but the Court could not direct a sale of land in which her children owned an interest for the purpose of paying her expenses.
It is to be noted that at the death of the plaintiff, if there be no living child or children of the plaintiff, or child or children of any such child or children which may have predeceased her, then the property would have to be distributed under the statutes of distribution to the next of kin of the testator, and all of such next of kin now in esse have been made parties in this cause.
The plaintiff alleges that the contract which was entered into with the defendant, Mrs. O.G. Dorn, was made in order to provide funds for the actual expenses of her children, and the Master found that to be a fact.
Now I concur in the findings of fact of the Master, and on motion of Lee Moise, attorneys for the plaintiff,
It is ordered, adjudged, and decreed that the defendant, Mrs. O.G. Dorn, do comply with the terms of the contract entered into by her with the plaintiff, copy of said contract being attached to the complaint in this action, and that upon payment to the Master of the purchase money, that the Master do convey the premises described in said contract unto the defendant, Mrs. O.G. Dorn, by proper deed, and that upon such conveyance being executed by the Master, the rights and interests of all persons claiming under, or who may claim under, the last will and testament of testator, or who may claim as next of kin of testator, be and hereby are barred and estopped of all right, title, and interest of, in, and to the premises so conveyed.
It is further ordered, adjudged, and decreed that out of the said money the Master shall pay all taxes which are now due and payable upon the land described in Paragraph 1 of the complaint; that he do next pay the costs and expenses of this action, inclusive of reasonable attorney's fees of the plaintiff's attorneys of $50.00; that he do next pay off and discharge the indebtedness of $300.00 and interest secured by mortgage of the life estate of the plaintiff; it being distinctly held by me that said indebtedness was incurred by the plaintiff for the benefit of the children of the plaintiff, and that the balance of the money thereafter remaining shall be paid out to and towards the support and maintenance of the children of the plaintiff; there being paid therefrom such sums as may be required to enable the defendant Frances Douglas Workman to continue at Coker College for the remainder of the scholastic year of 1934.
Mr. W.M. Reynolds, for appellant, Mrs. O.G. Dorn, cites: Right of Court to order sale of property held under trust: 148 S.C. 52; 149 S.C. 545; 135 S.C. 183.
Messrs. Lee Moise, for respondent, cite: As to power to order sale of property of contingent remainderman: 3 Rich. Eq., 1; 148 S.C. 52; 145 S.E., 623; 149 S.C. 545; 147 S.E., 648; 157 S.C. 434; 154 S.E., 632; 101 S.C. 1; 85 S.E., 60; 115 S.C. 35; 104 S.E., 321; 115 S.C. 10; 104 S.E., 325.
January 10, 1935. The opinion of the Court was delivered by
This action, commenced in the Court of Common Pleas for Sumter County by the plaintiff, Eliza Workman, against Rose Abbott Workman et al., was instituted for the purpose of obtaining the Court's approval of the conveyance of 50 acres of land, situated in the said County of Sumter, to the defendant, Mrs. O.G. Dorn, pursuant to a written agreement entered into between the plaintiff and the said Mrs. Dorn, September 4, 1933. From the agreed statement of the parties to the cause, it appears that the said Eliza Workman is in possession of and claims a life estate interest in the land involved under the last will and testament of the late Henry T. Abbott, it being stated in the case that "in and by the sixth paragraph of his last Will and Testament, the late Henry T. Abbott devised unto Eliza Barnett Anderson, now Eliza A. Workman, the plaintiff, a plantation in Sumter County, known as the 'Dick Place,' containing about five hundred and fifty acres of land, for and during her life and at her death to her children then living, the child of any deceased child taking the parent's share, if none be then living, then to those of my kindred who would be entitled to my property under the statutes of distribution of South Carolina, then of force." The said Eliza Workman is the mother of four children, who are made parties defendant in this cause, only one of whom is over the age of twenty-one years. As stated, on the 4th of September, 1933, the said Eliza Workman entered into an agreement with the defendant, Mrs. O.G. Dorn, whereby she agreed to convey unto Mrs. O.G. Dorn 50 acres of the aforementioned plantation at and for the sum of $1,250.00. All persons in esse having an interest in the land to be conveyed to Mrs. Dorn were duly served with the summons and complaint in the action and are now properly before the Court. The four children of Eliza Workman referred to are "Rosa Abbott Workman, Frances Douglas Workman, Bonnie Anderson Workman, and Sara Ethel Workman. The defendant, Ethel A. McCollum is a niece of the testator. The defendant, William S. Hutson is a nephew of the testator. The defendants Frances Marion McCollum and Rowland A. McCollum, Jr., are the only children of Ethel A. McCollum. The defendants Krell Hutson and Theodosia Hutson are the only children of William S. Hutson." It further appears from the record before us that "the defendants, other than Mrs. O.G. Dorn constitute all persons now in esse who are kindred of the Testator, and are the only persons, who could at this time take under the Statutes of Distribution, if the plaintiff were now to die, leaving no issue surviving her." The infant and incompetent defendants are represented in the suit by a duly appointed guardian ad litem, who answered in their behalf, submitting their interest to the protection of the Court and alleging, further, that the guardian ad litem had investigated as to the truth of the complaint and finds that there is a real necessity to sell a part of the property. We may, further, state in this connection that, according to the record before us, the proceedings in the case are entirely regular.
The case was referred to the Master for Sumter County, who, in due season, filed a report therein, from which report the defendant, Mrs. O.G. Dorn, on exceptions filed, appealed and the case was heard before his Honor, Judge J. Henry Johnson, who upon due consideration of the case overruled the exceptions and confirmed the Master's report, and directed the sale of the said 50 acres of land to the said Mrs. O.G. Dorn, in accordance with the prayer of the petition in the complaint filed.
The case now comes before this Court on appeal from the said decretal order of Judge Johnson. Upon due consideration of the entire record before us in the cause, we are satisfied that Judge Johnson reached a proper conclusion in the case. It is, therefore, the judgment of this Court that the order and decree of Judge Johnson be affirmed and made the judgment of this Court.
NOTE: Let the decree of Judge Johnson be incorporated in the report of the case.
MESSRS. JUSTICES STABLER and BONHAM and MESSRS. ACTING ASSOCIATE JUSTICES G. DEWEY OXNER and A.L. GASTON, concur.