March 26, 1925. The opinion of the Court was delivered by
In an action to recover real estate, the trial Court, on defendant's motion, ordered a nonsuit upon the ground that plaintiff had failed to establish title in himself. From that order the plaintiff appeals.
The facts out of which the controversy arises are set forth in detail in the opinion of this Court upon a former appeal, reported in 126 S.C. 180; 119 S.E., 186. For present purposes the following statement of the facts will suffice: In 1856, under a deed of marriage settlement, Annie P. Fripp conveyed unto Ann H. Fripp and Wm. J. De Treville, as trustees, to them and to the survivor of them, and the heirs, executors, administrators of such survivor, the real estate, etc., described in the deed, of which the property here involved was a part. The property was conveyed in trust for the following purposes, among others: (1) To pay over the income, etc., to Charles C. Lee for the joint use of himself and his wife, Annie P. Fripp, during their joint lives; (2) after the death of either to permit the survivor to take the income and profits for his or her use, and for the maintenance of any issue of the marriage, during his or her natural life; (3) after the death of such survivor
to apply the income to the maintenance of the children of the marriage until the oldest attains the age of 21 years or marries; and (4) upon the happening of either of said events to "reconvey, retransfer, and assign" all of the property to the child or children living at the death of the survivor, etc., the child or children of any deceased child to take the share the parent would have taken, etc. Annie P. Fripp Lee survived her husband, Charles C. Lee, and died in 1920, leaving one child, Annie C. Moyle, who was then more than 21 years of age, and who, in January, 1922, instituted this action. Subsequently, said Annie C. Moyle died testate and named as her sole devisee her husband, Geo. M. Moyle, who is now by substitution the party plaintiff.
Appellant thus states his case:
"* * * The Circuit Judge, W.H. Townsend, ordered a nonsuit upon the authority of the case of Ayerv. Ritter, 29 S.C. 135; 7 S.E., 53, upon the ground that the trustee was a necessary party plaintiff because he had not conveyed the fee to the remainderman. The plaintiff appeals, contending that the trustee was not a necessary party since, for the reason set forth in the following brief, the trust was an executed trust and to hold otherwise would be to defeat instead of to promote justice; the trustee having been dead 30 years and having left no son within the State of South Carolina."
On the former appeal it was expressly decided that the legal title was in the trustee under the trust deed up to the date of the death of the surviving life beneficiary, Annie P. Moyle (formerly Lee, nee Fripp). Whether, after the death of the life beneficiary, the legal title remained in the trustee by virtue of the duty imposed by the trust deed to "reconvey, etc.," the property — the precise question here presented — must be answered in the affirmative under the authority of Huckabee v. Newton, 23 S.C. 291. Ayer v.Ritter, 29 S.C. 135; 7 S.E., 53. Dumas v. Carroll, 112 S.C. 284,
293; 99 S.E., 801. Careful consideration has been accorded appellant's forceful argument that the doctrine announced and applied in those cases should be abrogated. The Court, however, is not prepared to overrule those decisions, and the ruling of the trial Court, grounded thereupon, must be sustained.
The only other contention covered by the exception, which is not disposed of by the foregoing conclusion, is that because Derrill De Treville, the eldest son of William J. De Treville, one of the trustees named in the deed, is a nonresident of the State, the trial Court erred in holding that the trustee was a necessary party to the action. The contention is untenable. See 26 R.C.L., 1273, § 123. Du Bose v. Kell, 105 S.C. 89, 98; 89 S.E., 555.Dumas v. Carroll, supra. As the point is not argued in appellant's brief, further discussion is deemed unnecessary.
The judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES WATTS and FRASER concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE COTHRAN did not participate.