74 S.E. 372 (S.C. 1912), Spigener v. Spigener

Citation:74 S.E. 372, 91 S.C. 167
Opinion Judge:WOODS, J. FRASER, J.
Party Name:SPIGENER et al. v. SPIGENER et al.
Attorney:The will and codicil alleged in the complaint are in evidence (judgment roll No. 5161, box 171, of the probate court of Richland county). The plaintiff has qualified as executor and administered the estate. He is in possession of all the estate of the testatrix, for his own especial use and benef...
Case Date:March 28, 1912
Court:Supreme Court of South Carolina

Page 372

74 S.E. 372 (S.C. 1912)

91 S.C. 167




Supreme Court of South Carolina

March 28, 1912

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, [91 S.C. 170] 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 said

Page 373

will. 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 F., 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...

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