Sires v. Sires

Citations

• 43 S.C. 266
• 21 S.E. 115
• 1895 S.C. LEXIS 161

Syllabus

<p>1. Will — Power of Disposal — Gift.—Testator devised his lands to his widow for life, to receive the income to her own use and for the maintenance of her minor children, with power “to sell, dispose of, and. convey all or any portion of my said estate upon such terms and conditions, and to such person or persons, as she may deem best, with power, also, to invest the proceeds of any such sale in other property or funds, the income of which is to be applied as hereinbefore provided,” and with further power to appoint by her will the said estate “and the proceeds of any part thereof that may have been sold,” and if no appointment be made by her will, the “said estate and the proceeds of such of it as may have been sold” was given to their children. Held, that a gift of this land by the widow by deed in her lifetime was not an execution of the powers conferred.</p> <p>2. Finding of Fact. — Deed—Consideration.—This court concurred in the finding of the Circuit Judge, based upon testimony heard by him, that there was no valuable consideration paid for the deed in this case, the expressed consideration of three dollars being nominal and formal.</p> <p>3. Power of Sale — Gift.—Where the life tenant and executrix has power to sell land, but not to give it away, her conveyance of the land without valuable consideration carries no title to the conveyee.</p> <p>4. Devise for Life — Power of Appointment. — An estate limited to one for life, with power of appointment in fee by deed or will, is not enlarged into an absolute estate in the life tenant, and her deed could convey a fee only when executed in pursuance of the powers conferred by the will.</p> <p>5. Tenants in Common — Fraud—Issues—-Trial.—Tenants in common, not in possession, may maintain action against a cotenant to set aside as fraudulent a recorded deed by which defendant claims the property in severalty and in fee, and also, in the same action, demand partition ; and if the defendant asserts exclusive title in hi