McCreary v. Burns

Citations

• 17 S.C. 45
• 1882 S.C. LEXIS 44

Syllabus

<p>1. Tbe provisions of a will were: “ I desire that the land and other property remaining shall continue in the possession of my beloved wife L. during her life, believing she will' make use of it to the best advantage for the benefit of our children as well as her own comfort. At her death, I wish the property sold and an equal division made. If it should be deemed advisable by the executors to dispose of or exchange the property, I authorize them to do so, having confidence that they will in all things consult the best interest of the family.” The widow was executrix. Held, that under the will construed as a whole L. took only a life-estate, with no power of consuming the corpus and without any trust during her life, enforceable by the courts, in favor of the children.</p> <p>2. To action brought after the widow’s death for partition of this property, the personal representative of the widow is not a necessary party.</p> <p>3. A tract of land purchased with money realized from the sale by L. of the lands included in this devise is governed by the terms of this will, even in the hands of a remainderman who took titles in his own name, but with full knowledge of the facts.</p> <p>4. There was'nothing in this will which empowered the widow to pay to her sons, for services rendered in keeping up the place and family, any part of the purchase-money of the lands sold.</p> <p>5. Under complaint for a partition of the substituted land, demanding also an accounting, the decree may order one of the co-tenants to refund, out of his share, a part of the purchase-money of the'first tract received by him.</p> <p>6. The only child of one of testator’s daughters, who died after testator, is'entitled to her mother’s vested interest in the remainder, and may, after the death of the life-tenant, bring action for partition.</p> <p>7. In such action she cannot be required to account for maintenance gratuitously extended to her in childhood by her maternal grandmother and uncle.</p> <