Tindal v. Neal , 59 S.C. 4 ( 1900 )

The opinion of the Court was delivered by

Mr. Chiee Justice McIver.

There are but two ques tions presented by this appeal: 1st. Whether the Circuit Judge erred in holding that the children of Mary E. Eynam, afterwards Tindal, who were alive at the death of the testator, Samuel Perdriau, and at the death of his wife, took vested remainders in the property which is the subject of controversy in this case, subject to open and let in other children of Mary E. Lynam (now Tindal), who should come into existence. 2d. Whether the Circuit Judge erred in holding that “the plaintiff, being in possession of the ioo acre tract of land, should account to the defendant for the income, rents and profits of the same,” and in directing the master to take testimony and report as to such income, rents and profits.

1 The first question has been so fully and satisfactorily discussed by the Circuit Judge in his decree (which will be incorporated by the reporter in his report of the case), as to supersede the necessity for any further discussion of that question. We, therefore, adopt his reasoning, enforced by the authorities which he cites, as amply sufficient to vindicate the conclusion which he reaches.

2 As to the second question, while it is true that the Circuit Judge does say in his decree that John M. Tindal (the husband of the plaintiff), who had been substituted as a trustee, under the marriage settlement between Mary E. Eynam and John B. Tindal, in the place of the original trustee, Richard F. Wells, who had died, was in possession, as such trustee, of the ioo acre tract of land; and afterwards does use the language excepted to, viz: “the plaintiff being in possession of the tract of ioo acres of land, should account to the defendants for the income, rents and profits thereof;” yet this is a mere error of statement, which certainly would not warrant a reversal of the judgment of the Circuit Court, as it can very easily be rectified, by construing the Circuit decree to mean, what we have no doubt the Circuit Judge did really mean, to wit: that any of the parties who were in the receipt of income, rents and profits of any portion of the lands sought to be partitioned, either by the complaint or answer, should account for the rents and profits thereof. This is manifest from the language immediately following that just quoted, viz: “and any of the defendants in possession of any part of the tract of 350 acres [as to which the right of partition was not in question], should account for the income, rents and profits of the same.” Under this conclusion of the true intent of the Circuit decree, the plaintiff, on the reference ordered, can only be required to account for as much of the income, rents and profits of the 100 acre tract of land as she may have received from the trustee, John M. Tindal; and if any further accounting for such income, rents and profits be desired, it will be necessary to make the said trustee a party to these proceedings.

The judgment of this Court is, that the judgment of the Circuit Court, as herein construed, be affirmed.