Citation Numbers: 48 S.C. 415
Judges: Pope
Filed Date: 3/9/1897
Status: Precedential
Modified Date: 7/20/2022
The opinion of the Court was delivered by
James E. Still departed this life in 1864, leaving a last will and testament, by the provisions of which he devised his large landed estate to his children, allotting to each the tract or tracts of land and other property they should receive. To his son, Bartholomew Still, and his daughter, Ellen M. Still, he gave his home place. To each devise he annexed this restriction: “The above named property to be enjoyed by my heirs during their natural life, and in the event of either of them dying without a child, his or her portion shall be equally divided among my surviving heirs.” Bartholomew and Ellen Still made partition of the home tract, by Bartholomew receiving the 166 acres now in dispute. In March, 1868, D. P. Still, a brother of Bartholomew and Ellen Still, conveyed by deed the lands of Bartholomew to William R. Delk in fee simple, and this deed was placed on record on the 16th March, 1868, and the said William R. Delk immediately thereafter entered into full possession of the same. Bartholomew removed from this State some time in the year 1868, unmarried. He was last heard from in 1875, and under the law is presumed to have died in 1882. The plaintiffs, as the heirs of James E. Still, now bring this action to recover from the heirs at law of Wm. R. Delk, who is also now dead, that moiety of the home tract of land which fell to Bartholomew Still. The case came on to be heard before his Honor, Judge Aldrich, who held that said tract of land, on the death of Bartholomew Still in 1882, reverted to the heirs of James E. Still, deceased,
Under the second exception we think the defendants are entitled to a reversal of the judgment of the Circuit Court. Under the issues tendered by the plaintiffs to the defendants they were obliged to prove that Bartholomew Still, the life tenant, died childless. This they did not attempt to do. It is true, they asked, and the Circuit Judge did consent, to presume that Bartholomew Still died childless, because he was unmarried when he left the State in 1868. He was heard from in the year 1875, but it does not appear whether he was then married or not. And in 1882, not having been heard from since 1875, he is presumed, to be dead, and now it is suggested that the law requires that the presumption that he died childless should be enforced, to take from these defendants two-thirds of this tract of land. Such is not the law. This nigh cut to prove title in the plaintiffs cannot and should not be enforced.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit .Court, with directions that a decree be there formulated dismissing the complaint.