Peoples Nat. Bank of Greenville v. Manos Bros., Inc.

• Decision Date: 17 November 1954
• Docket Number: No. 16931,16931
• Citation: 226 S.C. 257,84 S.E.2d 857
• Parties: , 45 A.L.R.2d 1070 The PEOPLES NATIONAL BANK OF GREENVILLE v. MANOS BROTHERS, Inc. et al., of whom Eugenla A. K. Manos is Appellant, and Marigo Manos and George Stavrakos Manos are Respondents.
• Court: South Carolina Supreme Court

Page 857

84 S.E.2d 857

226 S.C. 257, 45 A.L.R.2d 1070

The PEOPLES NATIONAL BANK OF GREENVILLE v. MANOS BROTHERS, Inc. et al., of whom Eugenla A. K. Manos is Appellant, and Marigo Manos and George Stavrakos Manos are Respondents.

No. 16931.

Supreme Court of South Carolina.

Nov. 17, 1954.

Wyche, Burgess & Wyche, Greenville, for appellant.

J. Robert Martin, Greenville, for respondents.

LEGGE, Justice.

On June 8, 1922, Manos Brothers, Inc., a corporation, executed and delivered to J. K. Manos and A. K. Manos its promissory note for $30,000, payable one day after date, with interest from date at the rate of seven per cent per annum, to be computed annually, and a mortgage securing the same, covering certain real estate in the City of Greenville, South Carolina. In 1925 the corporation dissolved; and in 1936 the said J. K. Manos and A. K. Manos, as sole stockholders, officers, directors and liquidating trustees of the said corporation, conveyed the said real estate to themselves individually in equal shares. On November 22, 1939, J. K. Manos and A. K. Manos executed and delivered to the plaintiff their promissory note in the amount of $10,000, and assigned as collateral thereto the note and mortgage before mentioned. A. K. Manos died on January 1, 1940, leaving a will dated October 24, 1938, which was thereafter duly admitted to probate in Greenville County, E. M. Blythe qualifying as executor. On March 12, 1942, plaintiff commenced this action for judgment on the $10,000 note, and for foreclosure and sale of the property covered by the collateral mortgage. Among others, there were made parties defendant Marigo Manos, the first wife of A. K. Manos, deceased, George Stavrakos Manos, a son born to Marigo in wedlock with A. K. Manos, but whose legitimacy was impugned by his will, Eugenia A. K. Manos, the second wife of A. K. Manos, and all other persons unknown claiming any right, title, estate or interest in or lien upon the real estate described in the complaint. The prayer of the complaint was: (a) for judgment against the defendants J. K. Manos and E. M. Blythe, as executor and trustee under the will of A. K. Manos, in the sum of $10,000, with interest and attorney's fee in accordance with the provisions of the note; (b) for judgment against the premises described in the collateral mortgage, in the amount of the note secured by said mortgage, with interest and attorney's fee as provided in that note and mortgage; (c) for the foreclosure and sale of the mortgaged premises, and the application of the proceeds thereof to the payment of the amount due on the $10,000 note, with interest and attorney's fee as provided in the note and mortgage; (d) 'that the balance of the proceeds derived from the sale of the real estate referred to in the complaint, if any, after payment of plaintiff's judgment in the sum of ten thousand ($10,000.00) dollars, with interest and attorney's fees as hereinabove set forth be paid over to the defendants as their respective rights and priorities may appear'; and (e) 'for such other and further relief as to the court may seem just and proper'.

Marigo Manos answered, admitting the death of A. K. Manos and his ownership of an interest in the property in question, and alleged that she was the lawful surviving wife of the said A. K. Manos and therefore entitled to a dower right in A. K. Manos' interest in said property or in the proceeds to be derived from its sale.

George Stavrakos Manos answered by guardian ad litem, requiring strict proof of the allegations of the complaint and submitting his rights to the protection of the court.

Eugenia Manos answered, denying that either Marigo Manos or George Stavrakos Manos had any interest in the premises, and alleged that she was the lawful surviving wife of A. K. Manos, that she had a life interest in the said property under his will, and that as to the remainder he had died intestate, leaving as his heirs herself as his wife, and his mother, Panagioti Maniates, one sister, Georgia Maniates Xanthakos, and one brother, J. K. Manos. She joined in the prayer of the complaint, and prayed further:

'1. That the undivided one-half interest owned by A. K. Manos in said property at the time of his death (subject to plaintiff's mortgage) be declared to be as follows:

'A. That E. M. Blythe, as executor and trustee, be declared to be the owner of an undivided one-half interest in the property described in the complaint (subject to plaintiff's mortgage) in trust for and during the life time of this defendant, Eugenia A. K. Manos, with this defendant as beneficiary of said trust, said one-half interest having been owned by A. K. Manos at the time of his death.

'B. That this defendant be declared to own an undivided one-fourth interest in remainder in said property after falling in of the life estate hereinabove referred to; that the defendant, J. K. Manos, and Panagioti Maniates and Georgia Maniates Xanthakos, be declared to be the owners of an undivided one-twelfth interest each in remainder in said property after falling in of the life estate hereinafter referred to.

'2. For such other further relief as to the court may seem meet and proper.'

George Stavrakos Manos filed a cross-answer to the answer of Eugenia Manos, alleging that A. K. Manos had died intestate as to his interest in the property after the expiration of the lawful interest of Eugenia Manos therein, that he was the lawful heir of A. K. Manos and the sole and exclusive owner of the remainder in said property by reason of the fact that his mother, Marigo Manos, had elected to claim dower in the estate of A. K. Manos, and that the life estate given to Eugenia Manos in the property in question, together with other properties of A. K. Manos situate in South Carolina, was invalid so far as its value exceeded one-fourth of the net value of the estate of A. K. Manos in South Carolina.

His answer concluded with the prayer:

'1. That he be declared to be the sole owner of the interest of A. K. Manos in the property herein concerned remaining after expiration of the law provision made for the defendant Eugenia A. K. Manos.

'2. That the life estate given the defendant Eugenia A. K. Manos in the interest of A. K. Manos in the property herein concerned, together with other properties, having a situs in the State of South Carolina, be declared null and void so far as the value of same exceeds one-fourth of the net value of the estate of A. K. Manos having a situs in the State of South Carolina.

'3. That the interest of A. K. Manos in the proceeds of sale from the property herein concerned, after payment of liens and the dower right of his mother Marigo Manos, be turned over to E. M. Blythe, as executor of the will of A. K. Manos, for the purposes hereinabove indicated.'

By consent order dated May 28, 1942, the cause was referred to the Master for Greenville County to take testimony and hear and determine all issues of law and fact, with leave to report any special matters.

An offer having been made to purchase the mortgaged property at private sale for an amount in excess of the plaintiff's claim, by consent order dated June 20, 1942, the private sale was approved and the interest of the estate of A. K. Manos in the excess proceeds was ordered to be paid to Col. E. M. Blythe, as executor and trustee under the will of A. K. Manos, to 'be held by him pending the final determination as to who is entitled as devisees, legatees, or heirs at law of the estate of A. K. Manos, deceased, to said portion of his estate.' Col. Blythe died in 1945 without having completed the administration of the estate, and his son, E. M. Blythe, was duly appointed administrator, d.b.n.c.t.a.

Presumably because of a protracted contest over a large claim filed in the Probate Court against the estate of A. K. Manos, which, if allowed, would have practically absorbed the entire estate, and which was finally decided adversely to the claimant in 1950, no further proceedings were had in the instant case until July 3, 1951, when the first reference was held before the Master. Another reference was held on December 21, 1951, another on January 15, 1952, and finally one on January 6, 1953. On July 15, 1953, the Master filed his report, holding that the court had jurisdiction in this proceeding to determine (1) whether or not George Stavrakos Manos was the lawful son of A. K. Manos; (2) whether Eugenia Manos or Marigo Manos was the lawful surviving wife of A. K. Manos; (3) to fix their respective rights in the estate of A. K. Manos in all real estate in South Carolina owned by him at the time of his death, including the property mentioned in the complaint; and (4) to construe the will of A. K. Manos so as to fix the rights and interests of the said three parties in his estate, whether by will or descent and distribution; and he found that George Stavrakos Manos was the lawful son, and Eugenia Manos the lawful surviving wife, of the said A. K. Manos. The holding in favor of the second wife was based upon a Georgia divorce obtained by A. K. Manos on October 22, 1923, purporting to dissolve his marriage with Marigo Manos.

Exceptions to the Master's report were filed by Marigo Manos and George Stavrakos Manos, and also by Eugenia Manos, and they were heard before the Honorable Steve C. Griffith, Judge of the Eighth Judicial Circuit, at Newberry, the Honorable J. Robert Martin, Jr., Judge of the Thirteenth Judicial Circuit, having filed an order disqualifying himself. By his order dated September 24, 1953, Judge Griffith sustained the report of the Master on the jurisdictional issues, but reversed his finding in favor of Eugenia Manos, and held that Marigo Manos was the lawful surviving wife of A. K. Manos. From this order Eugenia Manos has appealed on twenty-eight exceptions, raising numerous issues which will be hereinafter discussed.

The portions of the will of A. K. Manos pertinent to the issues with which we are here...