South Carolina. Court of Appeals.

Reports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) online

. (page 45 of 50)
Online LibrarySouth Carolina. Court of AppealsReports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) → online text (page 45 of 50)
Font size
QR-code for this ebook

to have estopped him from questioning the title of the pur-
chaser of the land. If he had stood by and seen the land
sold to another, without interposing an objectiorj, the pur-
chaser might have complained. But, suffering the title of
the purchaser to stand unimpeach(?d, what should prevent
him from setting up a claim to his proper share of the pro-
ceeds of the sale of the land ?

Tbe defendants also adduced in evidence a letter of the
plaintiff to his brother, William Wilson, to show a surrender
of his interest. The letter is a private and coiifidential com-
munication to his brother. The strongest expressions in the
letter, bearing on this point, are those in which he says he
had heard of the division of the effects, '■'■I do think^^'' he
says, " I should be entitled to the household effects which
Mary (his wife) had when she died. As for the bed and fur-
niture, she made them with her own hands; and as for the
other furniture, her mother made it and gave it to her. I do
not wish them to use myself, nor would I have it. I want
your children to have it, &c." He further says: "I have


Columbia. May, 18(10.

been advised to commence suit for an e(]nal share as one
of ilie legatees; I do not intend to do so. If 1 had every-
tliins, and conld settle it on yonr children, withont its coming
into my hands, I wonid do so. I am hard rnn, and very far
from being independent, thongh I do not and never did wish
to live on n)y dear wife's property, thongh I believe it wonId
have been her wish for me to liave what was hers; thongh
in my present situation I do not desire it, only in the way I
have stated. Please send me a copy of the will and keep
this a secret, as yon will be benefitted if anything comes."

Farther on, he says : " As regards D. Fant, (who had mar-
ried one of the parties entitled,) I do not want him to have
one cent which shonld have been poor Mary's. He was the
man who refnscd to iielp her at his own tal)le, after being
invited by her sister. He is nnworthy to be called man.
My l)lood boils whenever I think of it now; to think he, a
brute, shonld exult on what should \ia.vo, been hers."

This letter the defendants rely on as a release from the
plaintiff to the defendants, and D. Fant among them. It is
evidently written in ignorance of the plaintiff''s rights, in a
spirit of discontent of what lie believes would be the inevit-
able result, and manifests anything but a disposition to con-
cede anything which he believed to be his, and which the
law would give him. This is what the defendants call a
release !

If he had said to the defendatits in so many words, that
lie would release to them all his interest and share, it would
not have bound him. It would have been without consid-
eraiion, and wantitig in an essential form.

The plaintilf was and is entitled to the one-half part of the
share of his wife in the said estate held by Nancy McJnnkin
for life, with remainder to her children in fee. Noihintr
has happened which can have the effect of divesting him of
his rights. The children of Mrs. McJnnkin were as follows:
1, Emeline, wife of William Wilson ; 2, F^rancis; 3, Amanda;
4, Sarah ; 5, Harriet; 6, W. S. McJnnkin; 7, Robert I).


Wilson v-i. McJiinkin.

McJiinkin ; and 8, Mary Wilson, deceased, the plaintiff's
wife. These were the remaindermen with vested estates in
common, being eight in number. The share of the plaintiff's
deceased wife was then one-eighth of the whole. The plain-
tiff, as her hushand and distributee, is entitled to the one-half
part of her estate. The other half is distributable between
her father, now deceased, and her brothers and sisters. The
plaintift^'s share is a sixteenth of the whole estate. Jt is so
ordered and decreed. I do not know whether the proceeds
of the sale of the land have been collected and paid over.
If they have not, it is ordered and decreed that the commis-
sioner do pay to the plaintiff the one-sixteenth part of the
net proceeds of the sale of the said land, and of the inter-
est that has accrued thereon. If the proceeds of the sale of
the land have been collected and paid over to the other
remaindermen, it is ordered and decreed that the commis-
sioner state an account, with each of the other remainder-
men, for tlie purpose of ascertaining how much each party
must contribute to the plaintiff' to make his share equal, and
that each party pay to the plaintiff his or her proportionate
share, and the interest thereon, from the time he received it,
to make the plaintiff's share equal.

It is further ordered and decreed, that a writ of partition do
issue for the purpose of re-dividing the personal estate, so
held by Nancy McJunkin for life, with remainder to her
children. In such division, it is ordered that the commis-
sioners assign and allot to the plaintiff, Thomas Wilson, one-
sixteenth part of the whole, and that as to the rest of the said
personal estate, and the other remaindermen, tliey, the com-
missioners, conform as near as may be practicable with the
former division.

It is further ordered and decreed, that the commissioner in
equity state an account of profits of the negroes, &c., which
have been in possession of the defendants, and that the
plaintiff do receive the one-sixteenth part of the said profits
from the time that the said defendants have been in posses-


Columbia, May, 1800.

sion of the said personal estate, or in the enjoyment of the
profits thereof.

It is further ordered and decreed, that each party, plaintid
and defendant, pay an equal part of the costs of these pro-

The defendants appealed on the grounds :

1. Because his Honor erred, it is respectfully submitted, in
holding that Mary Wilson, wife of Thomas Wilson, took a
vested interest under the will of Thomas Sartor, transmissible
to her representatives,

2. Because his Honor erred in holding that Thomas Wil-
son is entitled to any portion of the estate distributable among
the children of Nancy McJunkiu.

3. Because, if plaintiff was entitled to any portion of said
estate, he has released the same, or, at least, his acts and dec-
larations raise that implication.

4. Because the decree is in other respects erroneous.

,/Jr//iur, (or appellants, cited : Myers vs. Myers, 2 McC. Ch.,
257 ; Cole vs. Crayon, 2 Hill, Ch., 311 ; Connor vs. Johnson,
2 Hill Ch., 41 ; Campbell vs. Wii^i^ins, Rice, Eq.. 10 ; Swinlon
vs. Le^are, 2 McC. Ch., 440 ; Stewart vs. Sheffield, 1 3 East, .'527 ;
Lomax vs. Glover, 1 Rich. Eq., 141; 1 Strob. Eq,, 383;
Mathefon vs. Hall, 3 Swans., 339.

Gadberry, contra.

Per Ciiriain. We concur in Chancellor Dargan's decree,
and for the reasons contained in it, it is allirmed.



Decree ajjirmed.


Miles vs. Wise.

FuANKLiN A. Miles vs. Fixklea G. Wise, Adm'r, and others.
Jurisdicfiofi — Injtinctioii — Equitable Estate.

W here one has acquired a good equitable tille to slaves through the distributees
— there being no creditors — of an intestate, the former owner of the slaves, upon
whose estate no administration had then been granted, equity will restrain one
who afterwards takes out letters of administration upon the estate of the intes-
ate, from prosecuting an action of trover for the conversion of the slaves, against
such equitable owner.


Franklin A. Miles filed his bill on the 13th day of Febru-
ary, 1860, stating, among other things, that on the 3d
day of February, 1849, he purchased from Joseph Bird,
Hugh G. Bird, John Blackman, Jr., and wife Ann, Mary
Owens, Wilson Herrin and wife Maria, a negro woman named
Hannah and her child Dick — that (hey represented them-
selves as tlie rightful owners of said slaves, under the will of
their mother, Elizabeth Bird; that until some time in the
year 1S58, he retained the undisputed possession of said
negioes; that in 1857 the defendant, Finklea G. Wise, obtained
letters of administration upon the estate of Alafair Bird, who
departed this life intestate, unmarried, without issue, and free
from debt, about the year 1841 or '42 ; that said Wise, ad-
ministrator, shortly after commenced an action of trover
in the Conn of Common Pleas for Marion district, against
complainant, for the conversion of said slaves, and the other
children of Hannah, born since the purchase by complainant,
wliich action is pending and pressed for trial ; that he has
learned upon inquiry that the slave Hannah was the property
of Alafair Bird, she having acquired it under the will of her
father, Arthur Bird, who died in 1835 ; that Alafair Bird was


Colunil>ia, May, 1&60.

unhealthy and partially idiotic, and her hrothers and sisters
made an arrangement by which she was to he snpported,
living with her mother, Elizabeth Bird ; that with this view,
Joseph 15ird, Ilngh G. Bird, Anna Bird, and Mary Ann Bird
conveyed all their interest in remainder in two other slaves
bequeathed to tlie said Alafair Bird, hy the will of her father,
to Edmund Herrin and Wilson Herriu, who had married sis-
ters of said Alafair, in consideration of their contributing a
certain sum for the sufjport of Alafair, which sum was to be
paid to Elizabeth Bird, the mother ; and to Elizabeth Bird,
the mother, the same parties conveyed the slave Hannah and
her increase, after the death of Alafair.

The bill then charged that Elizabeth Bird, the mother,
Hugh G. Bird, a brother, and Mary Ann and Charlotte, sis-
ters, were the only heirs and distributees of Alafair Bird ;
that the other children of Arthur Bird and Elizabeth, to wit,
Joseph, Maria, Peter, (the father of Ansy, wife of Fiid<lea G.
Wise, and Peter, her brother,) and another danghler, after-
wards intermarried with Phillip Owens, were illegitimate, liav-
ing been born previous to the marriage of their parents; that
consequently, as assignee of all those rightly interested in the
estate of Alafair Bird, the complainant has an indisputable
title to the slaves, Hannah and her children, but that this title
he cannot so well set up, under the strict rules of the com-
mon law, in his defence to the action of trover; that the
administration granted to the defendant Wise is unnecessary,
except for the purposes of partition ; that a recovery by the
said adfuinistrator, in the action of trover, would render it
necessary for the complainant to file his bill for partition, and
to be substituted for his assignors in said partition ; and that
the course pursued l)y the defendant Wise, tends unnecessa-
rily to harrass and disturb tli(> possession of the complainant,
and to multiply suits.

The hill prayed primarily for an injunctioti, restraining the
action of trover.


Miles V.I. VVisie.

The motion for an injunction was made at Marion, Mon-
day, February 20, 1860.

On the same day the defendant, Wise, filed his answer,
admitting the purchase, by the complainant, of the slaves
Hannah and Dick, from the [lersons in that behalf in the bill
named, but denying all knowledge of the consideration paid,
or of any representations made by the vendors at the time;
admitting, further, the apparent title acquired by said ven-
dors, under the will of Elizabeth Bird, and the long continued
adverse possession of tlie complainant; admitting, furtiier,
the grant of administration to the defendant upon the estate
of Alafair Bird, made on the 23d Novetnber, 1857 ; the
death of said Alafair, about the time stated in the bill, unmar-
ried and without issue, but not, so far as known to defendant,
free from debt; and the commencenient and pendency of the
action of trover against the complainant. The answer further
admitted the bequests to the intestate, by her father, Arthur
Bird, of the absolute estate in the negroes Hannah and Dick;
the partial idiocy of Alafair Bird, and the arrangement sub-
stantially stated in the bill, as made l)y the brothers and sis-
ters of the intestate, disposing of certain property belonging to
her, and including the negroes Hannah and Dick, but denies
that this arrangement was made with her consent, and charges
the motive inducing such arrangement to have been self-inter-
est on the part of the parties thereto. The answer denied the
unlawful cohabitation, before actual marriage, of Arthur Bird
and Elizabeth his wife, or the illegitimacy of any of their
children, and claimed that Ansy Wise, (wife of the defendant,)
and Peter Bird, her brother, (representing their fatlier, Peter
]3ird, a brother of Alafair,) were lawful heirs and distributees
of Alafair. Ansy Wise was stated to have been twenty-five
years of age, and Peter Bird twenty-two, at the date of the
grant of administration.

The answer submitted, that the title to the slaves in contro-
versy being in the defendant, as administrator, the Court
would, if it entertained jurisdiction, decree a specific delivery


Columbia, May, lb<30.

to Ilim of the said slaves, but submitted, further, that, as the
matters and things stated and coiDphiined of were all deter-
minable at law, the complainant was not entitled to relief in
the Court of E(|uily.

His Honor made the following order, to wit:
Upon hearing the bill and aliidavits, and the answer of
Finklea G. Wise, the defendant, it is, on motion of Harllee
& Graham, complainant's solicitors, ordered, that the defend-
ant, Finklea G. Wise, administrator of Alafair Bird, be
enjoined from further prosecuting his action of trover against
the plaintiff, at law, for tlie recovery of the slaves Hannah
and her children, mentioned in the pleadings, until the fur-
ther order of this Court, and that a writ of injunction do
issue accordingly.

The defendant, Finklea G. Wise, administrator, appealed
on the ground :

That the Court of Equity has no jurisdiction in the

Ins^/is, for appellant, cited Brown vs. Dickinson, 10 Rich.
Eq., 408.

DdVi^an, contra, cited Riley Ch., .33; /In<^hson vs. fVallace,
1 Rich., 1 ; Marsh vs. Nail, Rich. Eq. Cas., 115.

The opinion of the Court was delivered by

O'Neall, C. J. In this case I concur in the decree of the

The single question prpsenfed by the grounds of appeal is,
" that the Court of Equity has no jurisdiction in the premises."

The Court of Equity has jnrisdirtion to prevent the asser-
tion of a legal right, against a plain eqnitable rii^lil. This
principle is as old as the Court, and has been asserted and
carried out in innumerable cases.

Here the party complainant is in possession, under r. pur-
chase from the alleged distributees of the deceased, nine
years before the administration of the defendant. This in-


Miles vs. Witie.

testate died seventeen years before tlie grant of administra-
tion. She was in her lifetime unhealthy and idiotic, and at
her death was free from debt, as alleged in the bill. Taking
this case, it is plain that the com|ilainant has made ont a
case entithng him to the relief of the Court of Equity. The
case of Marsh and wife vs. A^ail and others, Rich. Eq. Cas.,
115, is a conclusive authority in his favor.

But it is supposed that Brown vs. Dickinson, 10 Rich. Eq.,
40S, stands in his way. I do not thijik so. In that case the
complainant's right depended upon a deed whicli was sup-
posed to constitute a separate estate in Mrs. Sessions, his
grantor. The bill sought a discovery of that which he did
not obtain. That closed the Court of Equity against him ;
and the case was properly left for the Law Court. There is
no such ditliculty in tliis case.

The defendant's answer sets up no debts ; after a lapse of
seventeen years, and from the condition of the intestate, the
presumption is she owed none. The only contest set up is
as to the legitimacy of two of the children of Arthur Bird
and Elizabeth, his wife, (sister and brother of tlie intes-
tate.) This question cannot be tried in the action at law; it
must be tried in the Court of Equity, where the case is
brought by the complainant. There can be no propriety,
under these circumstances, of allowing the defendant to liti-
gate at law, and disturb the complainant's possession. The
circuit decree of Chancellor Dunkin is atErmed.

Johnstone and Wardlaw, JJ., concurred.
Decree affirmed.


Columbia, May. ISnO.

Ch.vs. B, Farmer, adm'r, vs. A. M. D. Spell and others,

TFiHs and Teatcifncnts — .'idministratloii — Debts — Equitable


Testator directed " first, that all my jiist debts he paid and discharged ; and, sec-
ondly, that the remainder of my property he disposed of as lollows." He then
devised all his "lands on the Round O, known as the Ash Hill plantation." to
his son, '-to be valued by three disinit-resled persons, and to he received by
him at said valuation, as so much of his share of my estate" — directed that his
daughter should " receive in negroes, the amount o( the valuation of the land
given to my son ;" and, after provulinff tor other children to be born, should
there be any, bequeathed the remanider of his per.->onal properly to his wife: —
Hi-hl. that there was no equitable conversion of the larids into personalty, and
that as between the devisee and legatees the personal estate should be ex-
hausted in payment of debts before resort could he hud to the real estate


Paul W. Spell, being .soizcd and possessed of a plantation
known as liis Ash Hill plantation, and of some slaves and
other personal estate, died in March, )857, leaving a last will
and testament, as follows :

*' In the name of God, Amen. I, Panl W. Spell, of the
aforesaid State and district, being of sound mind and mem-
ory, and considering the nncerlainiy of this frail and transi-
tory life, do therefore make, ordain, publish and declare this
to be my last Will and 'resiamenf, viz.: First, that all my
just delits be paid and discharged; and, secondly, that (he
remaindfr of niy properly be disf)osed o( as follows, viz. :
First — I will and beqiu-aih to my son, Eldred Spell, all my
lands on the Round 0, kiinwii as the Ash Hill plantation, lo
be delivered to him whenever he shall become of age, to be
valued by three disinterested persons, and to be received by
liim at said valuation, as so much of his share of my estate,


Farmer v.s. Spell.

to have and to hold the same forever. Secondly — It is my
will that my daughter, Sarah Harriet, shall receive in negroes
the amount of the valuation of the land given to my son,
Eldred, to be delivered to her when. she arrives at the age of
twenty-one, to have and to hold the same forever. Third —
Should mv wife, Amanda M. D. Spell, have another child or
children by me, then the said child or children to receive in
negroes, an amount equal, each, to my daughter, Sarah Har-
riet, to receive the same at the age of (wenty-one, to have
and to hold the saujc forever. Fourth — It is my will that
my wife, Amanda M. D. Spell, should have the remainder of
my personal property her natural life, and after her death to
be equally divided among my children, share and share
alike, the child or children of a deceased child to receive his
or her portion so dying. Fifth — It is my will, in case either
of my children die without issue of body, that the share of
said child revert back to my surviving children. And
lastly — I nominate and appoint my brother, Henry McF.
Spell, executor to this, my last Will and Testament, and
hereby revoking all others by me made, declare this to be
my last Will and Testament, executed this, the 20th January,
in the year of our Lord one thousand eight Iiundred and

The executor named in the will refused to qualify, and the
complainant became administrator with the will annexed.

The debts proved to be very considerable, and this bill
was filed against the devisee and legatees and some of the
creditors for a sale of the estate, and praying that the assets
be administered in this Court. The principal question made
was, whether as between the devisee and legatees the real
and personal estate should contribute equally in payment of
the debts or whether the personal estate should be exhausted
before resort could be had to the realty.

DuNKiN, Ch. The pleadings present the facts upon which
the judgment of the Court is sought.

By the will of the testator, it was clearly his intention to


Columbia, May. 1860.

place his son and daughter upon an eqnal footing, in the dis-
tribution of his estate. To carry this purpose into eti'ect, his
Round plantation is directed to be valued by three disin-
terested persons, and to be received by his son at that valua-
tion, as so much of his share of his (testator's) estate: And
the daughter is directed to receive in negroes, the amount of
the valuation of the land given to the son. 'V\\c same prin-
ciple is applicable, as was declared in Perry vs. Ln^^an^ 5
Rich. Eq., 202. As between these legatees it was an equita-
ble conversion by the will itself, of the land into personalty,
as much so as if testator had directed the plantation to be
sold, in order to ascertain the value, and fix the equality
between them.

It is suggested in the pleadings, and seemed to be conceded
at the hearing, that the entire personalty would be insutlicient
to pay the debts of the testator, in which event a sale of the
real and personal estate would probably be necessary or expe-
dient. But the Court cannot assume the insufliciency with-
out a report from commissioner or special referee, to whom
an enquiry was directed by the order, 23 February, 18,59. It
may be proper to enlarge that order by directing the commis-
sioner to report the probable value of the personal estate of
the testator, and of what ihe same consists ; and it is accord-
ingly so ordered and decreed ; and that he have leave also to
report upon the necessity or expediency of a sale of all or
any part of the testator's estate. Upon the filing of said
report, parties may be at liberty to apply at chambers for
such order as may be necessary.

Finally, it is ordered and decreed, that the plaintitT, as
administrator wiih tiie will annexed, account before the spe-
cial referee for his actings in relation to said estate, and that
the special referee report thereon at the next sitting of this

Eldred Spell, defendant, appealed from so much of the


Farmer t's. Spell.

decree as decided that there was an equitable conversion of
the lands devised to him, into personalty :

1. Because the devise to him of the " lands on the Round
0, known as the Ash Hill plantation," was a devise of the
land itself as such; and if so, there was no equitable con-
version of it into personalty.

2. Because, if it was the intention of testator to place "his
son and daughter upon an equal footing in the distribution
of his estate," it is equally clear that it was his intention that
the "Ash Hill plantation" itself was to go into the possession
of, and be enjoyed by, this appellant.

Traci/, for appellant.

1. The constructive conversion of property, by the Court of
Equity, is eiTected by applying the principle : that which
ought to be clone, will be considered as done. 1 Jar man on
Wills, 523 ; Fletcher vs. Jishburner, 1 Bro. Ch. Ca., 497. And
realty can be converted into personalty, only., where a sale
has been directed. 1 Rop. Leg., 503 ; 1 Sanders, U. & T.,
300, marg.

It is evident, that only where the character of the estate is
directed to be altered, and this has not been done, that occa-
sion can arise for the application, in this connection, of the
principle above mentioned. And, in every case that can be
found, of the equitable conversion of realty into personalty,
a sale had been ordered, and the proceeds were what was

In our own cases, Postell vs. Postell, 1 DeS., 173; Mathis
vs. Griffin, 8 Rich. Eq., 79; fVilkins vs. Taylor, 8 Rich. Eq.,
291 ; North 7's. Valk, Dudley Eq., 212 ; Perry vs. Logan, 5
Rich. Eq., 202.

In the English cases, Mallabar vs. Mallabar, Ca. Temp.
Talb., 79; Ogle vs. Cook (cited in North vs. Valk); Spink vs.
Lewis, 3 Bro. Ch. Ca., 355; Dighy vs. Legard, in note to
Cruise vs. Early, 3 P. VVnis., 22 ; Wright vs. fVright, 16 Ves.


Columbia. May, I860.

Jr., ISS; Dut'ow vs. Mo/teaux, 1 Ves., Sr., 320 ; Chit ty vs.
Parker, 2 Ves., Jr., 271 ; Fletcher vs. Ashburner, 1 Bro. Ch.

Online LibrarySouth Carolina. Court of AppealsReports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) → online text (page 45 of 50)