Burkett v. Whittemore

Citations

• 36 S.C. 428
• 15 S.E. 616
• 1892 S.C. LEXIS 108

Syllabus

<p>1. Will — Probate—Operation'.—The admission of a will to probate by the Court of Probate establishes the fact that the will has been made according to the form prescribed by statute, but does not preclude inquiry in the Court of Common Pleas as to the validity of its provisions, or of their proper construction and legal effect, or as to whether it operates as the execution of a power.</p> <p>2. Married Woman — Will.—A married woman made her will, having under the law at that time no testamentary capacity except in the execution of a power. She afterwards acquired laud, was after that invested with full testamentary capacity, and finally died, being still a married woman. Held, that such land did not pass under this will, there having been no republication after the removal of her legal disability to devise.</p> <p>3. Ibid. — Ibid.—Powers.—A married woman having a power to appoint to uses by deed or will, made her will, and therein declared her appointment. Subsequently she conveyed the land by deed under the power, receiving half of the purchase money in cash, and the remainder was secured by bond and mortgage. Afterwards this vendee, in consideration of the cancellation of this bond and mortgage, rceon-veyed the land to a trustee in trust for this married woman, conferring upon her the same powers as she originally had. And then she died, leaving her said will unrevoked. Held, that the land passed under the will as an execution of the power originally possessed, unaffected by the conveyance and reconveyance by deed. Mr. Chief Justice Mc-Iver, dissenting.</p> <p>4. Ibid. — Ibid.—Ibid.—A will could not operate as an execution of powers originally and only conferred in a deed of conveyance subsequent in date to suoh will. Mr. Justice McGowan, dissenting.</p>