Opinion
November 29, 1905.
Before Jos. A. McCULLOUGH, special Judge, Richland, December, 1903. Affirmed.
Action in probate court by Fannie C. Wallace against E. Barton Wallace, Mrs. Margaret Caldwell, Andrew Wallace, Bruce Wallace and Wm. Wallace. From Circuit decree affirming probate court, petitioner appeals.
Messrs. Lyles McMahan and J.E. McDonald, for appellant, cite: As to effect of delivery: American Digest, Cen. ed., vol. 16, 35, 146, 150, 138, 139, 142, 143; 1 Strob. Eq., 349; 1 Mill., 191; 2 Strob., 309; 10 Rich. Eq., 359; 9 Rich. Eq., 306; Rice Eq., 255; Dud. Eq., 14; 3 Strob., 105; 23 S.C. 89; 34 S.E., 355; 35 S.E., 856; 46 Barb., 123; 105 Mass. 562; 59 Conn., 568; 30 Wis. 646; 38 S.E.R., 848; 9 Ency., 150, 152, 156, 159, 160. There must be an acceptance: 16 Century Dig., 178-9; 94 Ga. 50; 12 Mass. 456. Husband's seizin vests dower regardless of equities: 5 S.C. 275; 28 S.C. 580; 17 S.C. 563; 17 S.C. 380; 49 S.C. 427; 2 Brev., 211; Riley's Ch., 246; 17 Cen. Dig.; 1 Bouv. Law Dic., 613; 10 Ency., 2 ed., 153; 4 Cyc., 923.
Mr. Allen J. Green, contra, cites: Kind of seizin of husband in which dower attaches: 4 Kent. Com., *39; 10 Ency., 2 ed., 133-4; 2 Bail., 319; 2 Hill Ch., 213; 22 S.C. 451; 57 S.C. 162; 6 Rich. Eq., 72; 26 S.C. 370. This is an action at law and this Court cannot review findings below: 45 S.C. 494; 34 S.C. 464; 35 S.C. 273; 50 S.C. 214.
November 29, 1905. The opinion of the Court was delivered by
The plaintiff brought this action to recover dower in a certain dwelling and lot containing nine acres of land in and adjoining the city of Columbia. It was not disputed that William Wallace was once seized of the premises in question, that he was married to plaintiff in 1876, and died in 1902. It appears that on February 21, 1863, pursuant to a power of attorney to him, E.J. Arthur, as attorney in fact for William Wallace, executed a deed conveying the premises to Sarah Wallace and John Wallace in trust for the use of said William and his family during his natural life, and after his death for his children. On March 3, 1864, William Wallace, as executor of his father's will, filed his return in the probate court, showing the distribution of his father's estate under the will, by which it appears that the premises in question had, at that time, been substituted as a part of the trust estate settled on him under his father's will, in lieu of his note, at the appraised value of $6,024 and $3,981 in cash paid him, and upon his return he is credited as of the 21st of February, 1863, accordingly. There was testimony, however, that the deed was in the possession of William Wallace in 1881. This deed was not recorded until July 14, 1894.
The demand for dower is based upon the contention that this deed was delivered July 14, 1894, during coverture. The Circuit Court concurs with the probate court in finding as a fact that the said deed was delivered at the time it purports to have been executed. This being an action at law, the conclusion of the Circuit Court on a question of fact is binding on this Court. It cannot be said that there was absolutely no testimony to support such finding. It must follow that the plaintiff is not entitled to dower in said premises.
The exceptions are overruled, and the judgment of the Circuit Court is affirmed.