51 S.E. 692 (S.C. 1905), Du Bose v. Kell

Citation:51 S.E. 692, 72 S.C. 208
Opinion Judge:WOODS, J.
Party Name:DU BOSE v. KELL et al.
Attorney:J. H. Marion, Glenn & McFadden, and Caldwell & Gaston, for appellants. Halcot P. Green and Henry & McLure, for respondent.
Case Date:July 28, 1905
Court:Supreme Court of South Carolina
 
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Page 692

51 S.E. 692 (S.C. 1905)

72 S.C. 208

DU BOSE

v.

KELL et al.

Supreme Court of South Carolina

July 28, 1905

Appeal from Common Pleas Circuit Court of Chester County; Watts, Judge.

Action by Sarah F. Du Bose in her own right and as administratrix of Susan C. Kell against John A. Kell and others. From refusal of motion to make complaint more definite, defendants appeal. Affirmed.

The plaintiff, complaining of the defendant, alleges:

"(1) That heretofore, to wit, on or about the 24th day of December, 1902, Susan C. Kell, late of the county of Chester and state of South Carolina, departed this life, seised in fee and possessed of the following described lands and tenements, to wit: (1) All that certain tract, parcel, or plantation of land lying, being, and situate in the county and state aforesaid, known as the 'Old Kell Home Place,' containing 1,300 acres, more or less, and bounded as follows: *** (2) All that certain parcel, tract, or plantation of land, situate, lying, and being in the county and state aforesaid, known as the "Rocky Creek Place,' and located ***. (3) All that certain parcel, piece, or tract of land lying, being, and situate in the county and state aforesaid, known as the 'Parish Place,' containing 100 acres, more or less, and bounded ***; and leaving as her heirs at law the plaintiff, Sarah F. Du Bose, and the defendants Susan A. Boylston and Eunice R. Cloud.

(2) That the said Susan C. Kell was the wife of B. E. Kell, the elder, also late of said county and state, who predeceased his wife and departed this life on the 8th day of August, 1902, leaving of force his last will and testament, [72 S.C. 209] which was duly admitted to probate by the probate court for Chester county, on the 20th day of September, 1902, and by which will he devised all his property, real and personal, unto his wife, the said Susan C. Kell, for life, and after her death to his nephew, Dr. B. E. Kell, also late of said county and state, and appointed his said nephew, Dr. B. E. Kell, executor of his said will.

(3) That at the time of the marriage of the said B. E. Kell and the said Susan, and up to the time of his death, the said B. E. Kell had no property of his own, and no business or occupation which produced any income, but lived with his said wife and upon her property, devoting his entire time to the management and care thereof.

(4) That at the time of her death, and for many years previous thereto, and also previous to and at the time of the death of her said husband, the said Susan C. Kell was in weak bodily health, had lost her mind, was blind and an imbecile, and was attended during this time by the said Dr. B. E. Kell, her said husband's nephew, as her physician; and during the last few years of her life she was placed by the said Dr. B. E. Kell and her said husband under the control and in the care of relatives and friends, who kept her under restraint and away from her home, under the directions of her said husband and the said Dr. B. E. Kell.

(5) That upon information and belief plaintiff alleges that the said Susan C. Kell left her will of force, by which she devised the whole of her estate, both real and personal, to her husband, the said B. E. Kell, but that said will was never probated or put on record; and, if the same exists, plaintiff avers it is inoperative and ineffectual to pass any estate or interest in the said lands hereinabove described to the said B. E. Kell, her husband, by reason of the fact that the said B. E. Kell predeceased the said Susan C. Kell, the testatrix, and the devises and legacies therein named lapsed.

(6) That after the death of the said B. E. Kell the said Dr. B. E. Kell, who was the nephew of the said B. E. Kell, the elder, and his executor, and had for a...

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