69 S.E. 516 (S.C. 1910), Rice v. Coleman

Citation:69 S.E. 516, 87 S.C. 342
Opinion Judge:GARY, A. J. HYDRICK, J.
Party Name:RICE et al. v. COLEMAN et al.
Attorney:James Munro, McDonald & McDonald, and J. P. K. Bryan, for appellants. Johnstone & Cromer and Shand & Shand, for respondents.
Case Date:September 20, 1910
Court:Supreme Court of South Carolina

Page 516

69 S.E. 516 (S.C. 1910)

87 S.C. 342

RICE et al.

v.

COLEMAN et al.

Supreme Court of South Carolina

September 20, 1910

Rehearing Denied Dec. 7, 1910.

Appeal from Common Pleas Circuit Court of Union County; Thos. S. Sease, Judge.

Suit by Spencer M. Rice and others against William Coleman and others. From an order denying temporary injunction, plaintiffs appeal. Dismissed.

James Munro, McDonald & McDonald, and J. P. K. Bryan, for appellants. Johnstone & Cromer and Shand & Shand, for respondents.

GARY, A. J.

This is an appeal from the following order of his honor, Judge Sease, dated the 18th of December, 1909: "On hearing return of the defendants to the rule to show cause issued by me, *** and it appearing to the court that the power of sale conferred upon the executors by the will of Ann E. Rice confers upon them full power of sale of the real estate, and that no irreparable injury will be done to the beneficiaries of the will by the sale which the executors have declared their intention of making, it is ordered that said rule be discharged, and the restraining order granted by me on November 5, 1909, is revoked." The power contained in the will under which the defendants were proceeding is as follows: "I give my personal representatives full power to sell, all my real estate, wheresoever situated, and to make deeds to same."

The complaint sets forth two causes of action--one for accounting and the other for injunction. The following allegations of the cause of action for injunction are material to the question involved: That Ann E. Rice departed this life leaving in force a last will and testament which was proved in common form in the court of probate for Union county on the 1st day of September, 1908, and there was also proved in common form, in the court of probate in the county of Union on [87 S.C. 344] the 1st day of September, 1908, a paper purporting to be a codicil to the said last will and testament. That on the 4th day of November, 1909, proceedings were instituted by these plaintiffs in the court of probate for the county of Union contesting and requiring the said paper, purporting to be a codicil to the last will and testament of said Ann E. Rice, deceased, to be proved in due form of law, and the proceedings contesting the alleged codicil are now pending in the probate court for the county of Union; and these plaintiffs further allege and show that under the last will and testament of Ann E. Rice, deceased, these plaintiffs take as devisees and legatees thereunder 15/25 of the entire residuary estate of Ann E. Rice, deceased; but, if the alleged codicil to the last will and testament be declared valid by the said court, these plaintiffs will only take about 9/25 of the residuary estate of Ann E. Rice, deceased; and, until the proceedings contesting the validity of the codicil are determined, the respective interests and shares of the plaintiffs in the estate of Ann E. Rice, deceased, are undetermined.

These plaintiffs further allege "that acting under ex parte orders of the probate court of Union county, granting leave to the defendants William Coleman and Francis M. Farr, and empowering said defendants to sell the personal estate of Ann E. Rice, deceased, at public auction, the defendants have advertised for sale on the 15th day of November, 1909, 370 shares of the preferred stock of the Glenn-Lowry Manufacturing Company, and 250 shares of the common stock of the said Glenn-Lowry Manufacturing Company, and have also advertised for sale on the 15th day of November, 1909, 11 pieces of the real estate of the said estate, situate in the county of Union, embracing town lots and 9,000 acres and upwards of farm lands in the said county of Union, under [87 S.C. 345] a power of sale claimed under the will of Ann E. Rice, deceased, and are threatening to sell other personal property and real property aggregating 5,000 acres, in other counties in the state of South Carolina, of the estate, under a like power, as plaintiffs are informed and believe. And in this connection plaintiffs allege that the tracts of land advertised for sale in Union county vary in size from a few hundred acres, to 1,500 acres, and plaintiffs are informed and believe that said parcels of land would sell to better advantage, if divided into smaller tracts. That subject to the payment of debts, as the plaintiffs are informed and believe, they are tenants in common with the other devisees and legatees of all the estate, both real and personal, bequeathed and devised by Ann E. Rice, deceased, and plaintiffs are informed and believe that said estate, both real and personal, is capable of being divided in kind among the plaintiffs and others entitled thereto as legatees and devisees, but the same cannot be fairly and impartially divided and partitioned between the parties entitled thereto until their respective shares and...

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