## Facts

- William Boyd Carmichael and Jane Heggie each owned an undivided one-half interest in an approximately eighty-acre farm.
- William’s will granted his wife, Doris Carmichael, a life estate in his one-half interest and a general power of appointment expressly exercisable by will.
- After William’s death, Doris executed (1) a deed purporting to convey William’s one-half interest in fee simple to their son, Milton Carmichael, during her lifetime, and (2) a will appointing that interest to Milton at her death.
- Doris also entered into a contract with Milton agreeing not to change her will in exchange for Milton’s promise to care for her.
- Milton sued to partition the farm, asserting ownership of William’s one-half interest; Heggie disputed Milton’s fee-simple claim and sought construction of William’s will and quieting of title.

## Issues

1. Whether a general power of appointment expressly limited to testamentary exercise can be exercised by inter vivos deed to convey fee simple title.
2. Whether a holder of only a life estate pur autre vie in an undivided one-half interest may compel partition against a fee-simple co-tenant.

## Decision

- The Court of Appeals affirmed the trial court.
- The will granted Doris a strictly testamentary power of appointment, which could not be exercised by deed during her lifetime.
- Doris’s deed could convey only her existing life estate interest, creating in Milton a life estate pur autre vie measured by Doris’s life.
- Milton’s contract with Doris not to revoke her will did not convert his present interest into a fee simple.
- Because Milton lacked a present estate of inheritance in William’s one-half interest, he was not entitled to partition against Heggie.

## Legal Principles

- A power of appointment expressly limited to testamentary exercise cannot be validly exercised by an inter vivos conveyance; an attempted deed transfers only the donee’s present estate, if any.
- A life estate coupled with a testamentary power of appointment does not constitute present fee simple ownership; the remainder passes only through valid testamentary appointment at death or by the will’s default provisions.
- Partition generally requires a co-tenant to hold a sufficiently substantial present interest (typically an estate of inheritance); a life estate pur autre vie is insufficient to compel partition against a fee-simple co-tenant.

## Conclusion

The court held that Doris’s power of appointment was exercisable only by will, so her deed could not transfer fee simple title and instead conveyed only a life estate pur autre vie; lacking a present inheritable co-tenancy, Milton could not force partition of the farm.


Carmichael v. Heggie, 506 S.E.2d 308 (S.C. Ct. App. 1998)