Spigener v. Spigener

• Decision Date: 28 March 1912
• Parties: SPIGENER et al. v. SPIGENER et al.
• Court: South Carolina Supreme Court

74 S.E. 372

(91 S.C. 167)

SPIGENER et al.

v.SPIGENER et al.

Supreme Court of South Carolina.

March 28, 1912.

1. Wills (§ 585*)—Implied Revocation.

Where item 2 of a will bequeathed the testatrix's estate to her children from and after the determination of the interest given her husband by his death, and item 3 gave testatrix's husband absolute power and authority to sell and dispose of any of the estate he might deem advisable, and to reinvest any proceeds from such sale in any manner that he might deem for the best interest of the estate, a codicil providing that, after the determination of the interest given the husband by his death, all her real estate as left at her death should remain unsold until all her children should become of age, and further providing that she revoked item 2, related only to item 2, and in no way affected the discretionary power given the husband by item 3.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1274-1278; Dec. Dig. § 585.*]

2. Wills (§ 585*)—Codicil—Construction.

The effect of such codicil was merely to postpone and modify item 2; the word "revoke" being misused.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1274-1278; Dec. Dig. § 585.*]

Appeal from Common Pleas Circuit Court of Richland County; John S. Wilson, Judge.

"To be officially reported."

Action by M. R. 'Spigener in his own right and as executor against M. R. Spigener, Jr., and others. From a judgment for plaintiffs, certain defendants appeal. Affirmed.

The following is the decree of the circuit court:

"This is an action for the specific performance by the defendants Alfred B. Owings and W. D. Meehan of a contract of purchase, which is set forth in the complaint, of a lot in the city of Columbia, on the west side of Main street, between the Stork property on the north and the Palmetto National Bank building on the south, measuring on Main street 33 1/2 feet, more or less, and running back 208 feet, more or less, now known as Nos. 1327 and 1329 Main street, the price to be $1,250 per front foot, one-third to be paid in cash and the balance to be secured by bond and first mortgage of the premises, bearing 6 per cent. interest, and to run for 5 years, with the privilege of paying all cash or to anticipate the deferred payment upon 90 days written notice.

"The action involves the construction of the will of Mrs. Sallie F. Spigener, deceased, with reference to the power of sale conferred upon the plaintiff (her husband) by item 3 of the will, and whether that power is abrogated or affected by the codicil to the saidwill. The said two defendants by their answer admit the contract of purchase, and set up as their defense for not performing the same certain contentions and questions as to the interpretation of the will and codicil, to the effect that the plaintiff cannot give good and marketable title, all of which will more fully appear by reference to the said answer.

"All the parties necessary to a final determination of the questions at issue are regularly and properly before the court as parties to this action. The ten children of the deceased, her only living children or descendants, have all been regularly served personally, and have answered. The six adult children accepted personal service by their written acknowledgment of the same, and filed an answer, signed by each of them, admitting the allegations of the complaint and consenting to judgment, as prayed. The four infant defendants, the remaining children of the testatrix, Jennie S., Sarah P., J. Victor, and Philip S. Spigener, after due personal service upon them of the summons and complaint, and proper applications for the appointment of guardian ad litem, and due and regular appointment of Edward L. Craig, Esq., an attorney of Columbia, S. C., as their guardian ad litem, by orders of the clerk of this court, were represented by their said guardian ad litem at the hearing of the cause, as well as at the references held by the master, the said guardian ad litem having filed an answer for the. said infant defendants, submitting their rights to the protection of this court. The defendants, Owings and Sleehan, were represented at the hearing by R. Beverley Sloan, Esq.. their attorney. All the defendants reside in this state. The 10 children of the testatrix reside with their father, on Sumter street, except that M. R. Spigener, Jr.. was at the beginning of the action residing or temporarily absent at Barnwell, S. C., and Marion E. Spigener and the two infant daughters were, at the beginning of the action, and are at present, temporarily out of the state, being at the Virginia Institute, in the city of Bristol, in the state of Virginia (they being in the part that is not in Tennessee), the former being a teacher in said institute and the latter being students there, but all returning to their father's home in Columbia, their home, in the summer. An order for the service of these three defendants by publication was duly taken, and they were thereafter regularly and properly served personally and made parties to the action. The three infants, Jennie S., Sarah F., and J. Victor Spigener, were, at the beginning of the action over 14 years of age, and they duly petitioned the clerk of this court to appoint Edward L. Craig, Esq., an attorney of this bar, their guardian ad litem, and he was duly appointed, and answered and appeared for them. The remaining infant defendant. Philip S. Spigener, was under 14 years of age, and his father, with whom he resides the. plaintiff herein, duly petitioned for the appointment of a guardian ad litem for the said infant, Philip S. Spigener, and Edward L. Craig, Esq., was duly appointed by the clerk of this court, and answered and appeared for said infant defendant.

"Order of reference was taken, referring it to the master to take the testimony and report the same. The master's report and all the papers in the cause are before the court. The allegations of the complaint are proven by the evidence. The agreed price is adequate, and the...