The order appealed from correctly decides the question in this appeal and it is affirmed.
Let it therefore be reported with the elimination of the last paragraph appearing on Page 16 of the Transcript of Record, as this paragraph has no relation to the question before the Court.
The order of J. Frank Eatmon, Presiding Judge, requested to be reported, follows:
This matter came before me at the December, 1956, term of the Court of Common Pleas for Georgetown County, on the pleadings and on an agreed statement of facts submitted by Messrs. Smith & Moore and C.C. Grimes, Jr., attorneys for the plaintiff, Ada R. Stamper, and A.L. King, Esq., attorney for the defendant, Landy W. Avant.
The defendant, Angus E. McLaughlin, answering the complaint by his attorney, C.T. McDonald, Esq., admits all of the allegations of the complaint and joins in the prayer of the complaint for the relief demanded therein, and consents to all orders necessary to carry the prayer of the complaint into effect and that such orders be made in open Court or at Chambers, either within or without the County of Georgetown.
The defendant, Mrs. James F. (Frances McLaughlin) Hopkins, Jr., admits all of the allegations contained in the complaint and joins in the prayer of the complaint demanded therein, and consents to all orders necessary to carry the prayer of the complaint into effect, and that such orders be made in open Court or at Chambers, either within or without the County of Georgetown.
The summons and complaint were duly served on the defendant, James F. McLaughlin, and it appears that more than 20 days have elapsed since said service and no answer, notice of appearance, or demurrer has been served on plaintiff, or her attorneys.
The complaint alleges that James H. Detyens, late of the County of Georgetown, State of South Carolina, died about the year 1901, leaving in full force and effect his last will and testament dated the 25th day of March, 1899; that the said last will and testament was duly admitted to probate in common form in the Probate Court of Georgetown County and was recorded in Will Book A, page 306, and is on file in Roll No. 538; that the said will provided, in part, as follows:
"Third: I hereby declare that all the property real and personal, of which I shall die seized and possessed or to which I shall be entitled at the time of my decease is intended to be and is so given to my said wife in full satisfaction and recompense of and for her dower and thirds which she may or can in anywise claim or demand out of my estate.
"Fourth: And from and after the death or marriage of my said wife I give, devise and bequeath the then remaining estate real and personal unto my children, James F. Detyens, Hasford Wallace Detyens and Julian H. Detyens share and share alike to them and their heirs forever. Provided, however, that on the death of one or more of the above-named children without issue during the lifetime or widowhood of my wife the share or shares of such deceased children or child shall go to the survivor or survivors and his or their heirs, children of a deceased child to take the same portion to which their parent would have been entitled had he survived. And in the event of all of my above-mentioned children dying without issue during the lifetime or widowhood of my wife then I direct that the rest and residue of my estate shall go to my daughters, Mary E. Doar, wife of E. Marion Doar, and my daughter, Annetta Detyens to them and their heirs forever."
Under the terms of the will Margaret S. Detyens, wife of the testator, was appointed executrix of the said will.
That the real estate of which James H. Detyens died seized and possessed and devised under his last will and testament is described as follows:
"All that certain piece, parcel or tract of land situate, lying and being in the County of Georgetown, State aforesaid, near the corporate limits of the City of Georgetown, containing two (2) acres, more or less, butting and bounding as follows: Northeast by Duke Street extended; Southeast by Second Avenue; Northeast by lands now or formerly of Georgetown Land Association, and Southwest by Highmarket Street extended; being the premises formerly of James H. Detyens."
That by deed dated January 23, 1938, and recorded in the office of the Clerk of Court for Georgetown County on April 21, 1939, in Deed Book Y-2, at page 246, Hasford W. Detyens, one of the sons of James H. Detyens, deceased, testate, conveyed all of his right, title, and interest, contingent or expectant, either in law or ...