¶1 A petition for rehearing being filed, the following order was made
It is made as plain in the opinion of the Court as language can make it that the plaintiff, Harris P. Pearson, takes under the will by substitution in place of his mother and that he takes also by inheritance from and through his mother under the statute of distributions from those children of the life tenant who died without leaving a child and without having disposed of their share.
¶2 The petition is, therefore, dismissed.
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Status
Disposition: Reversed
Case posture Disposition Reversed. Posture Before SHIPP, J., Bennettsville, Spring term, 1916. Reversed.Action by H.P. Pearson against H.T. Easterling and others. Judgment for plaintiff, and defendants appeal.
The following statement appears in the record:
This action has been once to the Supreme Court, and will be found reported in 104 S.C. at page 178, 88 S.E. 376 , and states the facts as follows:
William C. Easterling died in 1866, leaving of force a last will and testament, bearing date the 26th of January, 1863, whereby, in the first paragraph thereof, he devised the lands in dispute to his wife, Martha Ann Easterling, to have and to hold during the term of her natural life, and whereby, in the second and third paragraphs thereof, he devised to his daughter, Mary Ann Easterling, wife of Dr. H.R. Easterling, the lands in dispute, `without being in any wise subject to debts or contracts, now existing, or which he may create hereafter, during the term of her natural life, and at her death that they (the lands) descend to the heirs of her body, to each an equal share, the children of any deceased child representing the parent.'
It seems that Martha Ann Easterling, the wife of the testator, survived him but a short time; but this is immaterial, as her rights under the will are not involved. Mary Ann Easterling and Dr. H.R. Easterling had 11 children.
The following table gives the dates and births, that have taken place in the family: (1) Margaret Pauline Easterling, born October 7, 1860, died October 25, 1873. (2) Gilmore Simms Easterling, born February 5, 1868, died June 21, 1888. (3) Harris B. Easterling, born November 23, 1877, died December 6, 1900. (4) Mary Elizabeth (or Bettie) Pearson, born November 15, 1863, died December 16, 1900. (5) Keitt E. Easterling, born August 17, 1870, died February 22, 1905. (6) Robert J. Easterling, born November 27, 1872, died October 23, 1911. Deaths of parents: Dr. H.R. Easterling died May 23, 1911; Mrs. Mary A. Easterling died May 7, 1912. Living children: (1) Mattie A. Pearson, born April 21, 1862. (2) W.C. Easterling, Jr., born February 17, 1866. (3) F.M. Easterling, born February 5, 1868. (4) Henry T. Easterling, born December 15, 1875. (5) A.G. Easterling, born May 18, 1882.
The only one of the deceased children above mentioned who left issue was Bettie Pearson, whose only child is Harris P. Pearson, the plaintiff, who was born during 1893. We have already stated that Bettie Pearson died in 1900, and that Mary Ann Easterling, the life tenant under the will, died in 1912.
The following are additional facts necessary to be stated, in that they may affect the share of the plaintiff:
Margaret Pauline Easterling, Gilmore Simms Easterling, Harris R. Easterling and Dr. H.R. Easterling all died intestate, at the times mentioned above, unmarried and without issue, except Dr. H.R. Easterling, and none of said parties made any disposition whatever of their interest in any of the land herein involved. R.J. Easterling died at the time mentioned, leaving a will, wherein he devised to his wife, Mary Ella Easterling, during her life, and after her death to be equally divided, share and share alike, among his brothers and sisters, child or children of any deceased child to represent and take the parent's share, his interest in his real estate.
The Supreme Court decided as follows, concerning the interest of the plaintiff: `The case just mentioned ( Rutledge
v. Fishburne , 66 S.C. 155 [ 44 S.E. 564 , 97 Am. St. Rep. 757]) and the one under consideration are so similar that we do not deem it necessary to cite other authorities to show that Harris P. Pearson, the plaintiff, took as an executory devisee under the will. Having reached this conclusion, it is unnecessary to cite authorities to show that Harris P. Pearson derived his rights directly from the testator, and that neither Bettie Pearson, his mother, nor any other party holding under the will, had the power to destroy his rights by merger or in any other manner. Under our construction of the will, the plaintiff has an interest in all the lands devised by the testator and to a share of the rents and profits.'
On this decision coming down, the plaintiff moved for an order setting off one-sixth of the entire property as his part. The defendants, H.T. and A.G. Easterling, insisted that the Court should direct that the interest of the plaintiff be set apart from the portion of the land now in the possession of Mary Ella Easterling, as it contained the very tract that had formerly been allotted and set apart to plaintiff's mother, Bettie Pearson, and by her conveyed to R.J. Easterling; that the identical 30-acre tract formerly owned by plaintiff's mother should be set apart to him, and, if said 30 acres was not considered a fair share, that then such additional land should be taken from that in the possession of Mary Ella Easterling as would give to plaintiff his fair share under the partition. Source: CourtListener
