Rountree v. Rountree , 85 S.C. 383 ( 1910 )

March 30, 1910. The opinion of the Court was delivered by This action was brought against the defendant, Carrie Ashley, to recover lands described in the complaint. The defendants, other than Carrie Ashley, are alleged to be tenants in common with plaintiffs. The case depends upon the question whether the following instrument is a deed or a will:

"Deed:

"State of South Carolina, Barnwell County.

"Know all men by these presents, That I, J.W. Rountree, of the district and State aforesaid, do give and bequeath unto J.B. Rountree, of the district and State aforesaid, four hundred acres of land, to be taken from the Green Pond tract, with following boundaries, viz.: North by lands of William Calvin Rountree and Nathan Anderson, and west by Isaac A. Wood; the dividing line to commence at the north of the Green Pond head, where it empties into Ned's Branch, running to the commencement or source of said head. The southern and eastern boundaries to fall within lands of said J.W. Rountree. This legacy I bequeath with the proviso that in case he, J.B. Rountree, dies without issue, the above legacy is to be returned to my (J.B. Rountree's) surviving children.

"Signed, sealed and delivered this 29th day of May, in the year of our Lord one thousand eight hundred and sixty and in the eighty-fourth year of the independence of America. J.W. Rountree. (L.S.)

"Delivered the original to J.J. Meyer, the 8th June, 1860. (marginal writing).

"Testator: J.B. Goodwin. E.J. Frederick, Isaac Foreman.

"South Carolina, Barnwell District.

"Personally appeared J.B. Goodwin, and made oath that he saw James W. Rountree sign, seal and as his act and deed deliver the within written deed, and he, together with E.J. Frederick and Isaac Foreman, witnessed the due execution thereof. J.B. Goodwin.

"Sworn to before me this 7th day of June, A.D. 1860. L.H. Morgan, Magistrate."

The claimants, who are the only heirs at law and distributees of J.W. Rountree, the maker, assert that the instrument is a deed and that in the absence of words of inheritance, the estate, on the death of J.B. Rountree, reverted to them. The defendant, Mrs. Ashley, contends that it is a will, giving a fee simple estate to J.B. Rountree with an executory devise to the surving children of J.W. Rountree in the event of the death of J.B. Rountree without issue, then living.

J.W. Rountree dictated this instrument to Dr. E.J. Frederick during his last illness, and he died a few days thereafter on June 3, 1860. This paper was recorded in clerk's office for Barnwell County on the 8th of June, 1860, and was then delivered to J.J. Meyer, who was the executor named in a former will of the testator, dated March 21, 1859, and probated in the office of probate judge on June 8, 1860, the same day that Mr. Meyer got the instrument in question from the clerk of the court.

The instrument in question was also probated as a deed or will in the probate office for Barnwell county on November 30, 1868. J.B. Rountree was a nephew of J.W. Rountree, and was a minor at the time of the execution of this paper, and Jos. B. Rountree was his general guardian and was present at the time of its execution. He testified that J.W. Rountree declared that he wanted J.B. Rountree to have four hundred acres of his Green Pond tract and requested one of the attending physicians to prepare the instrument in question. The issues of fact as well as of law were submitted to his Honor, Judge Watts, without a jury.

In a carefully prepared and learned decree (herewith reported with exceptions thereto), Judge Watts gave judgment for Mrs. Ashley and dismissed the complaint. He found as a fact that the instrument was left at the home of the maker not delivered nor intended to be delivered in his lifetime, and this conclusion is not without evidence to support it. Under the well settled rule such finding in a case at law is conclusive in this Court. In addition to the authorities cited in the circuit decree, we may add the recent case ofMerck v. Merck, 83 S.C. 341, where the Court declares:

"It is essential to delivery that a deed shall pass beyond the control of the grantor. If the grantor retains custody and control during his life the paper can not have effect as a deed at his death." The Circuit Court declared the instrument to be a will and, although unskillfully drawn, it complies with the essentials of a will as provided in section 2476 of the Civil Code, being in writing and signed by the party devising, and attested and subscribed in the presence of the devisor and of each other by three witnesses.

It has been probated as such, and in a proceeding in the probate court concerning the exchange of this same land, with all the surviving children of J.W. Rountree, parties thereto, the instrument was treated and acted upon as a will. The Circuit Court, therefore, correctly held that J.B. Rountree took thereunder a fee simple to the land in dispute, with executory devise to the children of J.W. Rountree surviving on the death of J.B. Rountree without issue, living at the time of the latter's death. It is admitted that J.B. Rountree died intestate in 1907, leaving surviving him three children, Frank H. Rountree, Leila Smith, and Lina Still.

This is conclusive of the case without regard to other matters discussed in the opinion of the Circuit Court.

The judgment of the Circuit Court is affirmed.