Busby v. Busby

Supreme Court of South Carolina

Decided December 24, 1927

Supreme Court of South Carolina · decided 1927-12-24

Cited by 5 later decisions — most recently October 1962

5 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1927-12-24

View the full empirical analysis of this case →

Mr. Justice Cothran

¶1 (concurring) : I feel constrained by the cases of Rochell v. Tompkins, 1 Strob. Eq., 114, and Lawrence v. Burnett, 109 S. C., 416; 96 S. E., 144, to concur.

Download

Copy

Embed on your site

Hover to preview · click to copy the code

Search Wikipedia →

Case posture

Posture: Before RICE, J., Aiken, May, 1926. Affirmed.Suit by M.E. Busby, as executrix of the will of D.B. Busby, deceased, against M.E. Busby, individually and in her own right, and others, for construction of decedent's will. From a decree confirming report of a master to whom the cause was referred to take testimony and pass on the issues, defendants Joel W. Riser and others appeal. The decree of Judge Rice and the exceptions thereto, referred to in the opinion, are as follows: DECREE D.B. Busby, a resident of Aiken County, died on or about the 28th of January, 1925, leaving of force his last will and testament, which was duly admitted to probate, and the present litigation is over the proper construction of some of the items of said will. At his death testator left surviving him no children, but his wife, the plaintiff. He was possessed of considerable property, both real and personal, at the time of his death. All the issues involved were referred to Edward S. Croft, Esq., and from the report filed by him on January 23, 1926, exceptions were taken, and on May 22, 1926, argument on said exceptions was had before me. The exceptions raise only two questions. The first is as to whether or not a gift of $50 to Newberry College was not adeamed by a gift of $500, made by the testator prior to his death, and after the making of the will. At the hearing, however, little stress was laid on this exception, and counsel stated, on account of the smallness of the amount involved, that they cared little about it, so that I will leave it as the master decided. It was admitted that, as to certain of the property of the testator, his wife had a life estate therein, but that the remaining was not disposed of. The master held that, as to his property, the plaintiff, the wife of the testator, took a fee in one-half of the remainder as an heir at law of her husband. The second exception questions the correctness of his findings. I agree with the master. Unquestionably the undisposed-of remainder is property and a part of his estate. Not having been disposed of by the testator, it descended to those whom the law designated as his heirs at law, if he has any, and there can be no question as to the fact that the wife surviving the husband is one of such heirs. No living man can have heirs, but as soon as he dies he then may have heirs, and who such heirs are will be determined at the date of his death. M.E. Busby survived her husband, D.B. Busby, and was therefore entitled to one-half of whatever estate or property he was seized and possessed of, which he had not disposed of by will or otherwise. The report of the master is so full and clear that I do not deem it necessary to cite any authorities, in addition to what he has cited. It is therefore ordered and adjudged that the said report of the master be and hereby is confirmed and made the order and judgment of this Court. EXCEPTIONS The appellants except to the said decree and allege error as follows: In that his Honor found as follows: I agree with the Master. Unquestionably the undisposed-of remainder is property and a part of his estate. Not having been disposed of by the testator, it descended to those whom the law designates as his heirs at law, if he has any, and there can be no question as to the fact that the wife surviving the husband is one of such heirs. And again in holding that M.E. Busby was entitled to one-half of whatever estate or property the testator was seized and possessed, of which he had not disposed of by will or otherwise, and further in holding that the said report of the Master be confirmed and made the order and judgment of this Court. The error being that his Honor should have held that Mrs. M.E. Busby was entitled only to a life estate in the residue of the property not disposed of by will.

Source: CourtListener

Court

Supreme Court of South Carolina

Parallel citations

140 S.E 801