Hughey v. Eichelberger

11 S.C. 36, 1878 S.C. LEXIS 42

• Court: Supreme Court of South Carolina
• Decided: July 31, 1878
• Docket: CASE No. 611
• Status: Published

Opinion

The opinion of the court was delivered by

McIver, A. J.

Daniel Hughey died intestate on the 22d of September, 1868, leaving as his heirs-at-law and distributees his widow, the plaintiff, and two children, the defendant, Job L. Hughey, the child of plaintiff, and the defendant, Effie, a child of a former marriage, and now the wife of the defendant, William H. Eichelberger. The intestate, at one time, owned three tracts of land in the county of Newberry, one known as the Sligh place, called sometimes the Kinard place, and the Lyles and Heller tracts. After the marriage of Eichelberger to the said Effie, they lived for a time on the Lyles and Heller lands, which then belonged to him. Subsequently, however, they were sold by the sheriff for his debts and bid in by his brother, George A. Eichelberger, but W. H. Eichelberger, under some arrangement with his brother, “held an occupancy or use of this land for life,” and so continued in possession until sometime in 1847 or 1848, when Daniel Hughey purchased these two tracts, and William H. Eichelberger and wife removed to the Thornton land, in Fairfield county, upon which they made improvements to the value of some $500. This Thornton place was said to have been the property of Mrs. Eichelberger’s mother, but the testimony on this point was not very distinct, and it did not appear what was the value of the place nor the extent of Mrs. Eichelberger’s interest therein; though it would seem from the testimony of Hope that there were other heirs of her mother besides Effie and her father, whose interests had been bought up by Daniel Hughey, who seemed to have the use and control of the place. After remaining a short time on the Thornton place, William IT. Eichelberger and wife again removed to the Sligh place, but at what particular time is not stated. These several moves upon the part of the Eichelbergers seem to have been made at the instance of the intestate, Daniel Hughey.

Soon after their removal to the Sligh place, Daniel Hughey executed a deed, bearing date the 5th of February, 1850, to William J. Alston, for the Sligh place and five slaves, to be held by him in trust for the sole and separate use of the said Effie during her life, (“ subject to the exception or reservation hereinafter made ”) and after her death to be settled upon her issue; and in ease of her death without leaving issue, then the said land and slaves were to become the absolute property of said Daniel Hughey. The exception or reservation is that the said Daniel Hughey retains the right — First. “ To have, use, cultivate and enjoy, in the most ample manner, free from any rent, claim or hindrance whatever, so much of said tract of land as the said Daniel Hughey may think proper.” Second. The right to require the trustee to sell all or any part of the property mentioned in the deed, and reinvest the proceeds in lands or slaves, as said Daniel Hughey may direct. And, Third. The right, by deed or will, to revoke or annul this deed, or make such other disposition of the said property as he may see fit. Daniel Hughey died without exercising the power of revocation or alteration, and the Circuit judge, adopting in this respect the finding of the referee, held this deed to be valid and sufficient to convey the property therein mentioned upon the trusts therein declared, and from this part of his decision there is no appeal.

Some time in the latter part of the year 1854, W. H. Eichelberger and wife left the Sligh place, after having made improvements thereon to the value of about $1500, and removed to the_ State of Mississippi, where they still reside. Immediately after they left, Daniel Hughey took possession of the Sligh place and continued in the use and occupation of it up to the time of his death — a period of nearly fourteen years; but the slaves mentioned in the deed continued in the possession of Mrs. Eichelberger until they were emancipated.

While on their way to Mississippi, Mrs. Eichelberger received from her father a sum of money amounting to about $3000, but whether as a gift, or in payment of claims which she and her husband may have had against her father is one of the questions in the case.

The questions raised by this appeal are — First Whether the Sligh place was an advancement — and if so, when was it made and how is it to be valued ? Second. Whether the five slaves mentioned in the deed of trust can be regarded as advancements. Third. Whether the money received by Mrs. Eichelberger from her father was an advancement. Fourth. Whether the estate of Daniel Hughey must account for the use and occupation of the Sligh place, from the time he took possession, say January 1st, 1855, or only from the time of his death. There is also a question of evidence which it will be necessary to dispose of, viz., whether the testimony of Eichelberger and wife, as .to transactions or communications with the intestate, was competent. The objection to so much of the testimony of Eichelberger and wife as relates to transactions or communications had with the intestate, must be sustained under the express terms of Section 415 of the code of procedure, so far as the testimony of Mrs.- Eichelber-, ger is concerned; but so far as the testimony of William H. Eichelberger is concerned, it cannot be sustained. The transactions and communications referred to were between the intestate and Mrs. Eichelberger, and not between the intestate and W. H. Eichelberger. The language of the code, Section 415, is: “ That no party to the action * * * * shall be examined in regard to any transaction or communication between such witness and a person at the time of such examination deceased” &c., and as held by this court in the recent case of Roe v. Harrison, MS.; decision filed March 9th, 1878. The proviso to Section 415 of the code does not apply when the transaction or communication was not between the witness and the deceased, but between the deceased and some other person.

The question whether the Sligh place is to be regarded as an advancement, is mainly a question of fact, in the solution of which the referee and the Circuit judge have reached different conclusions. We agree with the referee in the conclusion which he has adopted. He heard and saw the witnesses when they testified, and therefore had a better opportunity of judging of the force and effect of their testimony than the Circuit judge, who, as is said in the case, “ did not hear the evidence in the cause,” by which, we must presume, is meant that he did not hear the witnesses testify; for we certainly "would not be at liberty to presume that a judge would undertake to decide a case depending largely upon issues of fact, without hearing the testimony read, which had been taken by the referee, and most assuredly we could not assume that any judge would undertake to overrule the decision of a referee upon a question of fact, without first ascertaining what the testimony was, upon which such decision was based. Therefore, while the rule is to accept the decision of the court below upon a question of fact, as conclusive, except where it is, either without any evidence to sustain it, or is, manifestly, against the weight of the evidence; yet where such decision overrules the decision of a referee, and is reached by a consideration of testimony taken in writing, the rule does not apply. Dewitt v. Atkinson, 6 8. C. 142. As this court has, then, the same opportunities of judging of the testimony as the Circuit judge had, and, as is said in Gee v. Hicks, Rich. Eq. 20, “in such cases of difference of opinion between the-Chancellor and the commissioner upon the facts, this court is bound to examine the Chancellor’s decree and either adopt or reject it, as the facts may appear to warrant.” In doing this, however, we are not “ to enter into any discussion at large of all the evidence introduced, or to take up the testimony of every witness on the one side and compare it with that introduced on the other side to rebut it. We look at it as a whole, and justify our conclusion by the influence which its entire scope makes on our minds.” Dewitt v. Atkinson, supra. Looking, then, at this question in this light, the first circumstance which attracts our attention is that the deed conveying the Sligh place is, on its face, a purely voluntary deed, made by a father for the benefit of his married daughter; next, that the interest conveyed is subject to such reservations and conditions as to render such interest so precarious, during the life of the grantor, as to make it extremely difficult, if not impossible, to suppose that any person possessed of ordinary mental capacity, would be willing to pay any pecuniary value for it; and, finally, we are at a loss to discover any sufficient evidence to show that this deed was based upon any valuable consideration passing from the grantee or the person beneficially interested thereunder, to the grantor. Regarding this, then, as an advancement, the next inquiry is, when was it made— at the date of the deed or at the time of the death of the intestate? By the terms of the deed the interest conveyed to or for the benefit of Mrs. Eichelberger, was of so uncertain and precarious a character, dependent wholly upon the contingency of the grantor’s remaining in the same mind, that it can scarcely be said that any legal interest passed under it, until, by the death of the grantor, without altering or revoking the deed, such contingency had happened; and when, in addition to this, it is remembered that the intestate exercised his reserved right of resuming the use and enjoyment of the land in a comparatively short time after the making of the deed, and continued in such use and enjoyment up to the time of his death — a period of nearly fourteen years — we do not think the advancement can properly be regarded as having been made until at the time of his death, when it was no longer possible for him to exercise the reserved right of revocation. It must, therefore, be estimated at its value at that time in the condition in which it then was, and we can see no ground for allowing Eichelberger and wife anything for the improvements which they put upon the place while they were in the occupation of it, especially as the value of these improvements was, doubtless, as the referee finds, included in the settlement made between Mrs. Eichelberger and her father, when she was on her way to Mississippi, as will hereinafter be more particularly noticed.

Second. The slaves mentioned in the deed of February 5th, 1850, cannot be regarded as an advancement; for, besides the fact that this property cannot be regarded as having been really given to Mrs. Eichelberger until the death of the intestate, inasmuch as the donor reserved to himself not merely a life estate, but, practically, the absolute title, with the right to use and dispose of the property during his life, as completely and absolutely as if no such deed had ever been made, together witli the right to revoke the deed, we do not see how a slave can be regarded as an adváncement when the intestate died after the abolition of slavery, whereby slaves lost their attributes as property. It is manifestly impossible to ascertain the value of such an advancement, if advancement it be called. By our act of 1791, corresponding in its terms with Sec. 7, ch. LXXXV., Gen. Stat, p. 440, the value of the advancement is to be estimated “ at the death of the ancestor,” relation being had to its condition at the time of the gift. McCaw v. Blewitt, 2 McC. Ch. 104. Now, in this case, the intestate having died after the slaves were emancipated, it is clearly impossible to ascertain the value of these slaves by the rule established by the statute, and we are not at liberty to invent any other. It is not like the case of a slave dying after the gift and before the death of the intestate, while slaves continued to be property, because then we would 'be at no loss in applying the rule. In such a case, slaves continuing to be property, a standard of value of such property would still be accessible, and the question as to what would such a slave, as the one given, in the condition in which it was at the time of the gift, be worth at the time of the death of the intestate, would present no impossibilities or even difficulties, as the value could readily be measured by such existing standard. But in the case now under consideration there was no such standard at the time of the death of the intestate, inasmuch as there was then no such property. The cases of Manning v. Manning, 12 Rich. Eq. 410, and McLure v. Steele, 14 Rich. Eq. 105, do not conflict with this view, as in each of those cases the ancestor died while slaves were still property, though the settlement of the estate was not made until after the slaves were emancipated. Hence, the question presented to us -did not and could not arise in those cases. Without adverting to other reasons, this we think sufficient to show that the slaves mentioned in the deed of trust cannot be regarded as an advancement. It may be that tbe services or hire of these slaves, while they were allowed to remain in the possession of Mrs. Eichelberger by the intestate, might constitute an advancement, but as that question has not been raised by any exception Ave cannot consider it, and do not Avish to be regarded as indicating any opinion Avith reference to it.

Third. The next question is as to the money — $3000—re-ceived by Mrs. Eichelberger from her father while on the Avay to Mississippi. This, too, is a question of fact, and upon it, likewise, the referee and the Circuit judge have reached different conclusions'; the former, finding that no part of this sum of money was an advancement, but Avas a payment of sundry claims held by Eichelberger and wife against the intestate, Avhile the latter holds that only $1000 of the sum was a payment, and that the balance should be charged as an advancement .against Mrs. Eichelberger. Upon Avhat grounds the Circuit judge drew this distinction do not appear, as no reasons are given by him for any of the conclusions which he has reached. Here, too, we prefer to adopt the conclusion of the referee, as better sustained by the evidence. It is very true that the testimony as to this point, especially after excluding the testimony of Mrs. Eichelberger, so far as it related to transactions or communications had by her with the intestate, is not as clear and satisfactory as is desirable; but still we are of opinion that there was sufficient evidence to warrant the conclusion reached by the referee, especially when it is remembered that this Avas a transaction between a father and his daughter, Avho Avas about to remove to a distant state, leaving behind her such property as it would be inconvenient to take with her, and having certain claims which she and her husband undoubtedly did have against him. It would be unreasonable to expect that parties so related, dealing Avith each other under such circumstances, Avould go into nice calculations of value, or make accurate and detailed statements of tbe several claims which Avere brought into the settlement. Hence, while the testimony may not, perhaps, be sufficient to enable us to make such statements, which the parties themselves did not, probably, undertake to make, Ave think there is quite sufficient in the testimony to justify the conclusion reached by the referee, that no part of the $3000 was a gift, but that the whole sum was paid in satisfaction of the various claims which the one party had against the other. There is no doubt but that Mrs. Eichelberger had a contingent claim of dower in the Lyles and Heller lands, which was released to her father ; that Eichelberger left on the Sligh place, when he removed to Mississippi, his crop, stock and other articles, which went into the possession of Daniel Hughey and which he must have estimated to be worth at least $1000, as Clark proves that he offered that much for these various articles; and that Eichelberger, under an arrangement with his brother, had a life interest in the Lyles and Heller lands, which seems to have been surrendered to Hughey. We think, too, that there is good reason to believe that the interest of Mrs. Eichelberger in the estate of her mother was likewise included in this settlement. Then, too, the improvements which the Eichelbergers had put upon the Thornton place and the Sligh place, though not, perhaps, constituting the basis for any legal claim against Hughey, might very well serve as a basis for a payment by Hughey to Eichelberger and wife, upon the same principle as that announced in Merrill v. Merrill, 2 Strob. Eq. 153, “that though a parent is entitled to the services of his children while under age, he may waive his right and may make the services of his children the consideration of a contract or promise, and that he may give property bona fide in the performance of such obligation of justice/without its being subject to a claim on the part of the other children to consider it in the light of an advancement.”

All these various items might very well constitute a sufficient-consideration for the sum of money received by Mrs. Eichelbérger from her father, and therefore we agree with the referee that no part of this sum of money should be charged as an advancement to Mrs. Eichelberger.

After what had been said on the first question, it is scarcely necessary to say anything as to the fourth question, as it is very manifest that the estate of Daniel Hughey cannot be charged for the use and occupation of the Sligh place, except from the time of his death. We may add, however, that any other conclusion would be directly in face of the express terms of the deed of trust, exempting him from such charge, during his life, while in the exercise of the right reserved to him by the ■deed.

The third ground of appeal submitted on behalf of Eichelberger and wife, does not seem to have been pressed on the argument and was probably abandoned, as it is certainly not sustained by any testimony whatever, so far as appears in the case ” as submitted, and is directly in face of the finding of fact by the referee and the decision of the Circuit judge. In addition to this, under the view which we have taken of this case, holding that the slaves were not to be regarded as an .advancement, this ground loses its practical importance.

The fourth ground of appeal presented by the Eichelbergers is in the following words: “ Because his Honor erred in deciding that Effie W, Eichelberger had released her right to her distributive share in her mother’s real estate, except in part payment on the Sligh tract and five negroes named in the deed of trust.” The language in which this ground of appeal is presented necessarily implies that Mrs. Eichelberger did release her interest in her mother’s estate, and the only complaint is that the Circuit judge erred in holding that the consideration for such release was anything except a part payment for the Sligh tract and five negroes named in the deed of trust. We are unable to discover any such holding on the part of the Circuit judge. For as he decided that the Sligh tract and the slaves were not advancements, and as the grounds upon which such a decision was invoked were that they were not gifts, but were conveyed upon valuable consideration, a part of which was the release of Mrs. Eichelberger’s interest in her mother’s estate, the reasonable inference is that the Circuit judge did decide exactly what is demanded by the fourth ground of appeal, and hence, there is no foundation for any such ground. But as we think, as we have indicated above, that the release of Mrs. Eichelberger’s interest in the estate of her mother, constituted a part of the consideration for which the sum of money — $3000—was paid by her father to her, it becomes unimportant to determine precisely what the Circuit judge did decide upon this point.

The judgment of the Circuit Court, in so far as it conflicts with the views herein expressed, must be set aside, and the case remanded to the Circuit Court for further proceedings, in accordance with the principles herein established.

Decree modified.

Willard, C. J., and Haskell, A. J., concurred.