Davis v. Milady

Decided July 30, 1912

Supreme Court of South Carolina · decided 1912-07-30

Before Spain, J., Richland, April term, 1913. Action by F. G. Davis, Admr., with the will of John Milady annexed, against Susan'Milady et al. Defendant Trannie Cooper appeals.

Cited by 1 later decisions — most recently April 1946

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Modified · Decided 1912-07-30

View the full empirical analysis of this case →

Mr. Justice Fraser,

¶1 dissenting. I cannot concur in so much of the opinion of Judge Watts as limits the invalidity of the devise to the life of the widow. It seems to me that a waiver in which the wife does not join is void, whether the waiver is by deed, mortgage, devise or otherwise, and that this position is fully sustained by the authorities cited.

Download

Copy

Embed on your site

Hover to preview · click to copy the code

Search Wikipedia →

Status

Disposition: Modified

Case posture

Disposition: Modified.
Posture: Before SPAIN, J., Richland, April term, 1912. Modified.Action by F.G. Davis, Admr., with the will of John Milady annexed, against Susan Milady et al. Defendant Trannie Cooper appeals. The master's report is: Said John Milady, deceased, undertook to dispose of his property, as aforesaid, by his will, as follows, to wit: `After the payment of his just debts, to Trannie Cooper the tract above mentioned set off to him as homestead, and the remainder of his real and personal property to his wife, Susan Milady, but should she die or marry again, then upon her death or remarriage all his said real estate should go to Trannie Cooper in fee.' The defendant, Susan Milady, is the widow of John Milady, and as such she claims, by her answer, the right to elect whether she will take under the will or not, and to withhold her election until the Court has determined the issues which have been raised by the pleadings. And I find that she has such right. I find that no written assent has been given by the widow to this devise of the homestead of the deceased, and there are no creditors whose claims antedate the Constitution of 1895. The validity of this devise as against the widow is questioned in these proceedings. The provisions of the Constitution of 1895 (article III, section 28), `That after a homestead in lands has been set off and recorded the same shall not be waived by deed of conveyance, mortgage or otherwise, unless the same be executed by both husband and wife, if both living,' are directed only against the waiver by the owner of the constitutional exemption against the coercive claims of creditors wishing to subject the land to the payment of debts. As said by the Arkansas Court in Merrill v. Harris , 41 L.R.A. 716: `The Constitution does not in terms seek to do more than protect from the grasp of creditors.' The lands set aside as homestead descend to the heirs or devisees of the homestead as other property, except that it is exempt from sale for the debts of the ancestor. There is no provision in the Constitution of 1895 different from the Constitution of 1868 sufficient to create a new estate in the lands or alter the power of the owner to either alien the land or dispose of it by will to his devisee. Ex part Bullock , 58 S.C. 238 ; Sloan v. Hunter , 65 S.C. 241 , 242 ; Bostick v. Chovin , 55 S.C. 427 . I, therefore, conclude that the devise to the defendant, Trannie Cooper, by John Milady of the lands allotted him as homestead, under the Constitution of 1895, is valid; and that Trannie Cooper is entitled to possession of these lands, subject to the right of the widow, Susan Milady, to dower therein. The devisee takes the homestead lands free of any charge thereon for the debts of John Milady. Bostick v. Chovin and Sloan v. Hunter, supra. The debts are, therefore, payable only out of the personal estate of the testator, John Milady, and next out of the real estate devised to the widow for life, with remainder to Trannie Cooper. The defendant, Susan Milady, appealed from this report, and the Circuit decree is: This case was heard by me at the first session of the spring term of this Court in 1912, on exceptions by the defendant to the master's report. The undisputed facts are that a tract of one hundred and ninety acres of land was duly laid off to John Milady as a homestead in July, 1902, such assignment being duly recorded; that said John Milady died on February 10, 1910, survived by a widow, but no issue, leaving of force his will and testament, dated March 11, 1908, whereby he devised, without the written assent or waiver of his wife, this homestead tract to Trannie Cooper, and some other property to his widow, Susan Milady. It also appeared, and is so found by the master, that there are no creditors whose claims antedate the Constitution of 1895. This action was brought by the plaintiff, as administrator, with the will annexed, against the widow, two cousins of deceased, Trannie Cooper and a creditor, for the construction, as to payment of debts and settlement of the estate. The master, to whom was referred all the issues of law and fact, reported that a homestead created no estate, but being merely an exemption from the claims of creditors, the devise by the testator of the homestead tract to Trannie Cooper was valid, and the widow could not contest it. The exceptions to this report, taken by the widow, allege error in this finding, and the conclusions based thereon. It has been settled by many decisions of the Supreme Court of this State, that such would be the case if this case was governed by the Constitution of 1868 and the statutes passed in pursuance thereof. But with full knowledge by the constitutional convention of 1895, as the law presumes, of these decisions, the Constitution of that date provided, in section 28 of article III, `that after a homestead in lands has been set off and recorded the same shall not be waived by deed of conveyance, mortgage or otherwise, unless the same be executed by both husband and wife, if both be living.' This is also the language used in 1 Civil Code of 1902, section 2630. The precise question now involved is, whether the word `otherwise' in this enactment includes a devise. In my judgment it does. This word certainly must be construed to include something besides deeds and mortgages. Cool. Const. Lim., star page 58. It should include devises under the special meaning given the word `otherwise' by the cases cited under this head in 6 Words and Phrases, sections 5105-5113. Such being so, to make the devise effective it must have been assented to by the wife, either before or subsequent to the husband's death. Rohl v. Rohl , 12 Minn. 13 . And while it may be that such inhibition does not as such vest any estate in the wife, it nevertheless acts as a veto proper upon its alienation, encumbrance, lease, devise, etc. 15 A. E. Enc. Law (2d ed.) 668. This being so, the attempted disposition of it either by specific or residuary devise, was ineffectual, and as to this specific tract of land, the testator, John Milady, died intestate. Being intestate, it passed by law to his statutory heirs at law. It is, therefore, adjudged and decreed, that the exceptions of Susan Milady to the master's report be sustained, and that it be referred to the master to report who are such heirs. All of the master's findings, not excepted to, are confirmed, and made the judgment of this Court. The defendant, Trannie Cooper, appealed from said decree on the following exceptions: 1. That his Honor, the presiding Judge, erred in holding and concluding as matter of law, that the precise question involved in the case at bar was whether the word `otherwise' in the clause quoted from section 28, article III, of the Constitution, includes a devise; whereas, it is respectfully submitted, that the controlling question was, whether the word `waived' in said clause is synonymous with conveyed or devised, and it is further submitted that it is not. 2. That his Honor, the presiding Judge, erred in holding and concluding as matter of law, that the provision `that after a homestead in lands has been set off and recorded the same shall not be waived by deed of conveyance, mortgage or otherwise, unless the same be executed by both husband and wife, if both be living,' contained in section 28, article III, of the Constitution, renders void and ineffectual a devise of such lands made by a husband, in order to carry out his intention as to his testamentary disposition of his property, other than subjecting such lands to the payment of debts, where his wife, if living, fails to consent to, or join in, such act of testamentary disposition. 3. That his Honor, the presiding Judge, erred in holding and concluding as matter of law, `that while it may be that section 28, article III, of the Constitution, does not vest any estate in the wife of the owner of lands allotted and set off to him as his homestead, yet such constitutional provision acts as a veto power upon such owner's right to alienate, encumber, lease or devise, such lands, after the allotment of homestead has been recorded; whereas, it is submitted, that the prohibition of the Constitution is directed only against the subjection of such lands to the coercive grasp of creditors, without the consent of both husband and wife, if both be living. 4. That his Honor, the presiding Judge, erred in holding that the constitutional provision against the waiver of the homestead exemption, without the concurrent act and consent of both husband and wife, if both be living, affects the power of the owner of such lands to dispose of the same, after the death of both husband and wife, and in not restricting the effect of such constitutional provisions to the term of the joint lives of husband and wife, and the life of the survivor. 5. That his Honor, the presiding Judge, erred in holding that the attempted devise of lands set off to the owner as homestead, without the consent of his wife, being prohibited by section 28, article III, of the Constitution, as to lands so devised, or attempted to be devised, the testator should be held to have died intestate, and that such lands passed upon the death of the owner to his statutory heirs at law. 6. That his Honor, the presiding Judge, erred in holding that the provisions of section 28, article III, of the Constitution, rendered a devise of lands which had been set aside as the devisor's homestead void, and caused the land to pass to the devisor's heirs at law contrary to the devisor's testamentary intention with reference to the disposition of his property.

Source: CourtListener

Court

Supreme Court of South Carolina

Parallel citations

75 S.E 363