Price v. Ouija Realty Co.

• Decision Date: 26 January 1920
• Docket Number: 10342.
• Citation: 101 S.E. 819,113 S.C. 556
• Parties: PRICE v. OUIJA REALTY CO.
• Court: South Carolina Supreme Court

101 S.E. 819

113 S.C. 556

PRICE v. OUIJA REALTY CO.

No. 10342.

Supreme Court of South Carolina

January 26, 1920

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memmingen, Judge.

Action for specific performance by Thomas J. Price, as executor of the estate of Julia Jugnot, against the Ouija Realty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hagood Rivers & Young, of Charleston, for appellant.

Ficken & Erckmann, of Charleston, for respondent.

HYDRICK J.

This is an action for specific performance of a contract for the sale of a house and lot. Defendant is willing to perform if plaintiff can make a good title, but questions the title on the sole ground that the power of appointment, which was conferred upon plaintiff's testatrix by the will of Etienne Poincignon was not exercised, so as to vest the title in plaintiff.

In 1873, Etienne Poincignon devised the property to Julia Jugnot for life, remainder to her children or grandchildren, and in case of her death, leaving no child or grandchild (which contingency happened), then "to such person or persons as the said Julia Jugnot, by her last will and testament in writing, * * * shall appoint." Julia Jugnot died in 1917, leaving of force her last will and testament, which was duly executed in 1913, the relevant provisions of which are as follows:

"All the rest and residue of my estate of which I may die seized and possessed of, or which I may hereafter acquire, both real and personal, of every kind and description, whatsoever, whether in possession, remainder or expectancy, I give to my executor, in trust to build a memorial wing at the St. Francis Xavier Infirmary, to endow two rooms, said wing to be known as the Julia Jugnot memorial, the wing to be built first and the balance to be used for endowing two rooms.

Lastly, I nominate, constitute and appoint my friend Thomas J. Price executor of this my last will and testament, giving and granting him full power to sell any or all of my estate both real and personal and to execute any instrument in writing that may be necessary to carry out this my last will and testament and to confirm the sale of property left me under the will of my uncle Etienne Poincignon."

Defendant concedes that the foregoing provisions express clearly enough the intention of the testatrix to execute the power conferred upon her by her uncle's will, but contends that notwithstanding...