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public way, or by reason of defect or mismanagement of anything
under control of the corporation, within the limits of any town
or city, may recover, in an action against the same, the amoxmt
of actual damage sustained by him by reason thereof. If any
such defect in a street, causeway, or bridge existed before such
injury or damage occurred, such damage shall not be recovered
by the person so injured, if his load exceed the ordinary weight;
provided, the said corporation shall not be liable unless said de-
fect was occasioned by its neglect or mismanagement." The
second proviso, relating as it does to contributory negligence,
not being pertinent to the inquiry, need not be set out. It is
apparent from the title of this act, as well as from the terms used
in the body of the act, that the sole purpose was to give a person



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March, 1895.] Dunn v. Barnwell. 846

who had sustained an injury by reason of a defect in a street a
right of action to recover damages for such injury. The title of
the act is as follows: "An act providing for a right of action
against a municipal corporation for damage sustained by reason
of defects in the repair of streets, sidewalks, and bridges, within
the limita of said municipal corporation,'' and it is manifest that
the purpose thus declared in the title was adhered to in the body
of the act, especially from the language used in the proviso above
set out, where it is declared that the corporation should not be
liable, "unless said defect was occasioned by its neglect or mis-
management,'' indicating very clearly that the term "mismanage-
ment," as used in a previous part of tiie act, meant mismanage-
ment in making repairs on the streets, so that the corporation
should be held liable, not only for neglect in making the repairs
on the streets, but also for mismanagement of anything under tlie
control of the corporation in making such repairs. There is
nothing whatever in the act indicating an intention on the part
OT the legislature to make a municipal corporation liable for any
other nonfeasance or misfeasance on its part, except such as was
connected with the keeping of the streets, etc., in proper and safe
repair.

^^^ Now in this case it is very apparent that there is no allega-
tion in the complaint that the injury complained of arose from,
01 was caused by, any neglect or mismanagement on the part of
the defendants in keeping the streets of the town in proper and
safe repair. On the contrary, the allegation is that the injury
resulted from the fright taken by plaintifiPs horse at certain ob-
jects exposed for sale in the streets of the town, and was not in
anywise due to any fault of defendants in allowing any defects
in the street to remain unrepaired, or any mismanagement in
making such repairs. On the contrary, one of the allegations
in the complaint is that there was an "apparent safe way along
said street at said time," over which plaintiff could have safely
passed, but for the fright which his horse took at certain goods,
wares, and merchandise displayed for sale. This does not give
the plaintiff any cause of action, either under the statute or at
common law, as has been held by this court in several cases, when
called upon to construe a previous statute of similar tenor, so far
as the present question is concerned, though differing in some
other respects not pertinent to the present inquiry. See what
is said in Acker v. Coxmty of Anderson, 20 S. C. 495, where,
though the point was not decided, because not necessary to that
case, yet a very strong intimation is thrown out in favor of our



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846 Key v. Wsathbbsbxs. [S. Carolina,

Tiew. See, also. Brown r. Laurens Gonnty, 88 S. C. 282, and
Mason y. Ck)unty of Sparbanbnrg, 40 S. G. 390, 42 Am. St Bep.
887, where the point is decided. The cases from Massachnsetta
and Maine, dted by respondent's counsel, seon to support the
same new.

The judgment of this court ia that the judgment of the cir-
cuit court be affirmed.

MUNICIPAL CORPORATION&-DUTY TO KEEP STREETS IN
REPAIR.— The duty to keep streets in repair is a ministerial duty de-
voWing on the municipality, for the breach of which an action lies io
favor of a party injured by reason of a neglect of such duty : Sutton t.
Snohomish, II Wash. 24; 48 Am. St. Rep. 847, and note. If a city, by
its charter, is charged with the duty to keep its streets in repair, and
has the means provided by taxation to discharge it, it is liable for neg-
lect to perform such duty: Maus v. Springfield, 101 Mo. 613: 20 Am.
St. Rep. 684: Farquar v. Roseburg, 18 Or. 271* 17 Am. St. Rep. 732»
and extended note; but where the charter imposes no liability on a
municipal corporation for damages sustained by individuals upon its
streets and highways in consequence of defects therein, such defects are
not actionable: Bates v. Rutland^ 62 Vt. 178; 22 Am. St. Rep. 95, and
note. Incor^rated towns and cities owe a duty to the public to keep
their streets m repair; but, in the absence of a statute, the town or city
is not liable in a civil action for an injury resulting to a party from a
neglect to keep them in repair: Arkadelphia v. Windham, 49 Ark. 189;
4 Am. St. Rep. 32, and note.

. MUNICIPAL CORPORATIONS— LIABILITY FOR DEFECTS IN
HIGHWAYS FRIGHTENING HORSES.— Where objects ordinarUy
calculated to frighten roadworthy horses are allowed to remain on a
highway, they are regarded as defects, and after due notice to the
authorities, the township will be liable for injuries caused thereby:
North Manheim Tp. v. Arnold, 119 Pa. St. 380; 4 Am. St. Rep.650»
and note: Card v. Ellsworth, 65 Me. 547; 20 Am. Rep. 722. See, also.
Cleveland v. Bangor, 87 Me. 259: 47 Am. St. Rep. 826, and note, and
especially the extended note to Morse v. Richmond, 98 Am. Dee. 610»



Key V. Wbathbrsbbb.

[48 SOXTTB CABOUXrA, 414.]

DEYISB-VOID ESTATE FOR LIFB-ACCBLERATBD BS-
MAINDBRS.— If a devise of land to a specified person for life la
void, because the devisee signs the will as a subscribing witness, tlie
remainders declared by the will, after the termination of the life
estate, vest in the remaindermen in possession immediately upon the
death of the testator.

DBVISB-LIMITATION OP BSTATB— BBNEFIOIAL INTBR-
EST.— If a tenant for life is directed by will to pay over the rents and
profits of the estate to his children after the death of the testator and
his own death, the estate and Income therefrom then to go to a third
person, the life tenant has no beneficial interest in the estate and la
only a trustee for his children as to the income.

Action to obtain a construction of a will, and for the parStioii
of the estate of Bethaney Moore^ deceased. Judgment for tlie de-



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March, 1895.] Ksy v. WxATHSBSfiSS. 847

f endants and plaintifib appeal. The decree of the lower court
and the exceptions thereto were as follows:

''The plaintiffs allege in their complaint that the said Beth-
aney Moore left a last will and testament, and two codicils there-
to, which have been duly admitted to probate, and which contain
devises to Floyd W. Weathersbee and Charlce Ann Weathersbee,
his wife; and it is further alleged that, because the said Floyd
W. Weathersbee is a witness to the said will and codicils, he can
take nothing under the same, he not being an heir at law of the
testatrix; and it is further alleged that, the devises to the said
Cliarlce Ann Weathersbee (who is an heir at law of the testatrix)
being of greater value than the interest that she would take in
the said estate as an heir at law, it follows such devises to her are
null and void; and it is then alleged that, there being no particu-
lar estate to support the remainders which are devised to Bessie,
Jane B., and James Moore Weathersbee, the same are defeated,
and partition is asked of the real estate left by the testatrix the
same as if there had been no last will and testament The answer
of the defendants deny that the plaintiffs have any interest in the
said estate, and it is further alleged in the answer that, even if
the devise to Floyd W. Weathersbee is forfeited under the stat-
ute, and that the estate devised to Charlce Ann Weathersbee is
in part forfeited under the statute, the remainder to James Moore
and Bessie are not defeated, but, to the contrary, are thereby
accelerated, and vest at once.

"The case is presented mainly upon an agreed statement of
facts, and I find therefrom as follows: That Bethaney Moore
died in the early part of the year 1890, leaving a last will and tes-
tament and two codicils thereto, which were duly admitted to
probate in the court of probate for Barnwell county; that Floyd
W. Weathersbee is one of the subscribing witnesses to said will
and each of the codicils; that the plaintiffs and the defendant,
Charlce Ann Weathersbee are the heirs at law of the testatrix,
and as such would be interested in her estate in the proportion
set forth in the complaint; that Floyd W. Weathersbee is not
an heir at law of the testatrix, but the husband of the defend-
ant Charlce Ann Weathersbee, and Bessie, Jane B., and James
Moore Weathersbee are the children of Floyd W. and Charlce
Ann Weathersbee and they are the grandnieces and grandnephew
of Bethaney iloore. The will, as modified by the codicils, con-
tains the following devises, namely: To Floyd W. Weathersbee
and Charlce Ann, his wife, is given a life estate in the testatrix's
home place and the Darlington place, to have and to hold the



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848 Kit v. Wsathbrsbbb. [S. Carolina,

fiame in oommon between th^nsdyeB for and during the term of
their natiLral lives, and, should one survive the other, the whole
6hall remain in such surviving one during the term of his or her
natural life. At the death of the survivor of the said Floyd W.
Weathersbee and Charlce Ann the homestead place is devised ra
fee to Bessie Weathersbee, and the Darlington place and the
Dickes place is at the same period devised to the said James Moore
Weathersbee. By the fifth clause of the will, all the rents and
profits arising from the Dickes place, which may accrue between
the death of the testatrix and the death of the survivor of the said
Floyd W. and Charlce Ann, is devised to the said Bessie, Jane B.,
and James Moore Weathersbee, to be equally divided between
them, Floyd W. and -Charlce Ann Weathersbee taking no bene-
ficial interest in the Dickes place. A legacy of two hundred dollaia
in gold is given to the said Bessie Weathersbee, and directed to be
used in purchasing a piano for her when she arrives at the age of
twelve years, or sooner if the executors of the will saw fit to do so.
A legacy of nine hundred and fifty dollars is given to the said
Charlce Ann Weathersbee and her said children, Bessie, Jane
B., and James Moore Weathersbee. Under this provision the
said Gharloe Ann takes one-fourth of the nine hundred and fifty
dollars; and one-fourth of the said amount goes to each of the
said children* The balance of testator's property, after the leg-
acies are paid, la devised to Floyd W. and Charlce Ann Weath-
ersbee.

^^nder these facts the plaintiffs allege, as above stated, that the
will is practically superseded by the statute law of this state (Rev.
Stats., new ed., sec. 1991); that there is no precedent estate to sup-
port the remainder in the real estate; that Floyd W. Weathersbee
takes nothing, and Charlce Ann, his wife, only as much as she would
take under the statute as heir at law, and not imder the will. But
I hold to the contrary, that the statute provides that 'such devise,
legacy, and bequest shall be valid and effectual, .... except so
far as the property, estate, or interest so devised or bequeathed
shall exceed in value any property, estate, or interest to which
such witness, or the husband or wife of such witness, would be
entitled upon the failure to establish such will, .... but to the
extent of such excess the said devise, legacy, or bequest shall be
null and void.' It is clear, under section 1991, that the devise
to Floyd W. Weathersbee is void, and that the devise to Charlce
Ann Weathersbee, his wife, is void as to the excess of such devise
over and above what she would take as heir at law; but to that
extent it is valid, and she takes the same under the wilL It ap-



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Harch, 1895.] ExY v. Wsathxbbbxb. 849

pesrs that the laid Charlce Ann would be entitled to the one
twenty-fifth part of the entire estate as heir at law^ and to that ex-
tent her devise under the will is valid. The agreed facts are not
sufficiently fall for me to ascertain the value of the estate^ and
it will be necessary to refer the case to the master to ascertain
«uch value.

'^The ascertained will of the testatrix is contained in the writ-
ten instrument as admitted to probate. It can be defeated only
by enforcing the forfeiture pronounced by the statute on account
of Floyd W. Weathersbee being a subscribing witness thereto^
This will be done so as to inflict as little injury as possible upon
innocent third parties who were the objects of the testatrix's
bounly, and interfere no more with the terms of the will than
necessary to meet the requirements of the law. In my judgment^
that is fully done in declaring as forfeited all that Floyd W.
Weathersbee would take under the will, and in cutting down the
estate and l^acy to Charlce Ann to an amount equal in value to
what she would have taken as heir at law of the testatrix, which
we have seen amounts to one twenty-fifth part of the estate. It
is manifest from the will that the reason why the testatrix post-
poned the enjoyment of the estate left to her grandnephew and
grandnieoes was because she supposed that the devise of the life
estete to Floyd W. and Charlce Ann Weathersbee was valid.
Such life estate, being defeated wholly as to Floyd W. Weathers-
bee, and in part as to Charlce Ann, will not, on that account^
destroy the remainder to their children, but the effect is, the life
estete being out of the way, the remainders are accelerated, and
vest at once in the children. It cannot be doubted that the tes-
tetrix postponed the enjoyment of the estate left to the grand-
nephew and grandnieces solely because she desired the parente
to have a life estate. Now, it matters not how the life estate
falls in, whether by the death of the life tenant or by the for-
feiture under the stetute; in either case the remainderman takes
as soon as the life estete oeases to exist. This construction seeoms
to me sound upon principle, and is supported elsewhere by the
most respecteble authority. The reasoning in the case of JuIT v«
Jacobs, 3 Ch. Div. 709, cited by defendants' counsel, meets my
hearty approval, and the case of Woodbery t. Collins, 1 Desaus*
Eq. 424, while not in point, yet shows the inclination of our
courts to construe the statute the same as the English courts have
done. See, also, 20 Am. ft Eng. Ency. of Law, 895, where the
case of Jull v. Jacobs, 8 Ch. Div. 709, is cited with full quotation.
But, whatever view I might entertain as to the argument pvt-

AM Sr. Rv., VO . XLIX.'M

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850 Key v. Weathbbsbxb. [8. Carolina^

sented hj the plaintiffs* ootuisel, I could not interfere with the
testatrix's diposition of the Dickes place, the whole beneficial
interest in which is devised to other than thoee against whom the
law inflicts its penalties, nor of the two hundred and fifty dollars
given to Bessie Weathersbee, nor of at least three-fourths of the
nine hundred and fifty dollars given to the children of the said
Charlce Ann.

'^t is therefore ordered, adjudged, and decreed that the vested
xemainder of Bessie Weathersbee in the homestead place and of
James Moore Weathersbee in the Darlington place be, and the
fame are hereby, declared accelerated as to the whole or any part
of the life estate not required to make up to the said Charlce Ann
Weathersbee the one twenty-fifth part in the value of the testatrix*?
estate. It is further ordered and adjudged that it be referred to
the master of Barnwell county to ascertain and report the total
value of the real and personal estate left by the said Bethaney
Hoore, deceased, and how much thereof has been expended in the
payment of the expenses of the administration, including the pro-
bate cost of this suit. That he also ascertain and report thevalue of
the life estate devised to Charlce Ann Weathersbee in each the
homestead place and the Darlington place. That the said master
also ascertain and report the value of the fourth part of the nine
hundred and fifty dollars bequeathed to the said Charlce Ann,
the remaining three-fourths part of said sum having been be-
queathed to her children, as hereinbefore stated; and the said
master do further ascertain and report whether there be any other
personal property of said estate, after paying the said specific
legacy of nine hundred and fifty dollars just mentioned, and the
legacy of two hundred dollars given to Bessie Weathersbee, and,
,if there be any such other property, the value thereof; and that he
also ascertain and report whether tiie testatrix owned at the time
of her death other real estate than that enumerated in her will, and,
if any, what is the value of the same; and that he do also ascer-
tain and report whether the one twenty-fifth part of the whole
estate can be paid out of the one-fourth part of the nine hundrecT
and fifty dollars bequeathed to the said Charlce Ann and the re-
siduary estate, and, if not, how much the deficiency will be. It
is further ordered and adjudged that the master report in detail a
scheme for setting apart to the said Charlce Ann Weathersbee
the one twenty-fifth part in value of the estate of the testatrix
out of the interest devised or bequeathed to her in the following
order, to wit: 1. Out of the one-fourth part of the nine hundred
and fifty dollars bequeathed to her; 2. Out of the residuary ee-



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March, 1896.] KsT w. Wsathsb8bbb. 861

tate; and 8. Out of the life estate deyieed to her and her hue-
band in the homestead and Darlington places. It is further
ordered and adjudged that when the foregoing provisions of the
order have been carried out, and if it therefrom appear that there
is a surplus of the residuary estate of testatrix, then such surplus
be divided among the plaintiffs according to their respective in-
terests as set forth in the complaint therein, excluding in such
division the defendant Charloe Ann Weathersbee. It was stated
at the hearing that there were no debts against the estate of the
testatrix, hence there is no reason why the rights of the parties
hereto may not now be fully adjudicated/'

'^Exceptions: The plaintiffs except to the judgment and decree
of his honor. Judge J. J. Norton, filed herein on the third day
of July, A. D. 1894, and will move the supreme court of the
said state to reverse the said judgment upon the following grounds^
to wit: 1. Because his honor erred in holding thsit, where the life
estates intended to support remainders, as in this case, ai^ void in
their creation by virtue of a statute, that the remaindezB would
be accelerated and vest at once; 2. Because his honor should
have held that, there being no particular precedent estate in this
case to support the remainders limited to the children of Floyd
W. and Charlce Ann Weathersbee by the will of Bethaney Moore,
the same were void, and that the estates devised should pass as
intestate property; 3. Because his honor erred in holding as fol-
lows: 'Now, it matters not how the life estate falls in, whether by
death of the life tenant or by forfeiture. Under the statute, in
either case, the remaindermen take as soon as the life estate
ceases to exist, for the reason that in this case no life estate
ever existed to cease, the same being void in its creation by opera-
tion of law*; 4. Because his honor erred in holding that Charlce
Ann and Floyd W. Weathersbee take no beneficial interest in the
Dickes place, whereas, he should have held that the testatrix at-
tempted to create in them a life estate in said place, as in the
other property, and that the same stood on a similar footing
with the Darlington place and the home place; 5. Because his
honor erred in referring the case to the master to ascertain the
value of the interest which Charlce Ann Weathersbee takes,
and to report a scheme for the settlement of same, it being agreed
that she would take one twenty-fifth part in said estate, this being
the interest which she would take as heir at law of the said Beth-
any Moore; 6. Because his honor should have held that, as the
life estate devised to Charlce Ann Weathersbee by said will was
in excess of the interest which she would have taken in case ol

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862 Ebt v. Weathersbbe. [8. Carolina,

intestacy, and her interest bdng reduced to one twenty-fifth port
of said estate in consequence of her husband being one of the
subscribing witnesses tb the said will and codicils, this would
transform the interest of Charloe Ann Weathersbee to that of a
fee in said property, and would therefore, of necessity, disorgan-
ize the remainders attempted to be created by the said will and
codicils."

W. A. Holman and Henderson Brothers, for the appdlaat

Croft & Chaf ee, for the appellee.

**® McIVEB, C. J. The questions raised by this appeal in-
volved the proper construction of the will of the late Mrs. Beth-
aney Moore, with the two codicils thereto, as affected ^^^ by the
provisions of the act of 186t5, incorporated in the Sevised Statutes
of 1893 as section 1991. For a full understanding of the facts
of the case, about which there is no dispute, and of the questions
presented by the appeal, reference must be had to the decree of
his honor. Judge Norton, and the exceptions thereto, all of which
should be incorporated in the report of this case, care being taken
to correct the error in the decree, giving the section of the Be-
vised Statutes referred to as section 1974 instead of 1991, and the
omission in the latter part of the quotation from that section^
arising, doubtless, from a misprint

It will be sufficient to state here that the testatrix by her will
specifically devised certain real estate to the defendants Charloe
Ann Weathersbee and her husband, Floyd W. Weathersbee, for
their ]oint lives, and to the survivor of them during the life of
such survivor, with remainder to the other three defendants,
Bessie, Jane, and James Moore Weathersbee; but as it is con-
ceded that the said Floyd W. Weathersbee was a subscribing wit-
ness to the will, as well as to the two codicils, the question is ae
to the effect of this conceded fact upon the provisions of the will
just stated, under the provisions of section 1991 of the Revised
Statutes above referred to. That section reads as follows: **No
subscribing witnesses to any will, testament, or codicil shall be
held incompetent to attest or prove the same by reason of any
devise, legacy, or bequest therein in favor of such witness, or the
husband or wife of such witness, or by reason of any appointment
therein of such witness, or the husband or wife of such witness,
to any office, trust, or duty; and such devise, legacy, or bequest
shall be valid and effectual, if otherwise so, except so far as the
property, estate, or interest so devised or bequeathed shall exceed
in value any property, estate, or interest to which such witness^



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March, 1895.] Key v. Weathbbsbbb. 868

or the husband or wife of such witneesy would be entitled upon
the failure to establish such will^ testament, or codicil, but to the
extent of such excess, tiie said devise, legacy, or bequest shall be
null and void, and such appointment shall be valid, if otherwise
80, but the person or persons so appointed shall not, in such case,
be entitled by law to take or receive any commissions or other
compensation on account thereof/'

^^ The circuit judge held that the effect of this statutory pro-
vision was to destroy or forfeit all the interest that Floyd W.
Weathersbee would otherwise have taken under the will, and
to cut down the interest of Charlce Ann to an amount not ex*
ceeding in value the interest which she would have taken as
heir at law if there had been no will, which, it is conceded,
would have been one twenty-fifth part of the estate* And he
further held that this did not destroy the interest in remainder
intended for the children of Charlce Ann, but that the effect
was simply to accelerate the remainders, which, therefore, took
effect at once. The appeUants, on the other hand, contend that



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 97 of 121)