December 7, 1910. The opinion of the Court was delivered by This is an appeal from the following order of his Honor, Judge Sease, dated the 18th of November, 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 *Page 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, fifteen-twenty-fifths (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 nine-twenty-fifths (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 exparte 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, three hundred and seventy (370) shares of preferred stock of the Glenn-Lowry Manufacturing Company, and two hundred and fifty (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, eleven (11) pieces of the real estate of the said estate, situate in the county of Union, embracing town lots, and nine thousand (9,000) acres and upwards of farm lands, in the said county of Union, under *Page 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 five thousand (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 fifteen hundred (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 interests shall have been determined in the proceedings instituted in the court of probate of Union county, to determine the validity of a paper purporting to be a codicil, to the last will and testament of Ann E. Rice, deceased. That as plaintiffs are informed and believe, the said Ann E. Rice, deceased, left unpaid little or no personal debts, and if any debts exist against her estate, the defendants, as plaintiffs are informed and believe have a sufficient amount in cash, to pay up the same."
At this stage of the case, the merits cannot be considered, and the only question which the Court can now determine is, whether the plaintiffs made a prima facie showing, before his Honor, the Circuit Judge, for a temporary injunction.Alston v. Limehouse, 60 S.C. 559, 39 S.E. 188; Oil Co. v. Oil Co. 62 S.C. 196, 40 S.E. 169; Riley v. Union StationCo. 67 S.C. 84, 45 S.E. 149. *Page 346
The controlling question is, not whether the personal property is sufficient to pay the debts, or whether it would be advantageous to the plaintiffs for the real estate to be divided in kind among the respective parties, but whether it would be an abuse of power for the executors to proceed to sell the real estate.
The power is ample to justify the action of the executors, and the plaintiffs have failed to satisfy us that its exercise would be an abuse of discretion.
Appeal dismissed.
MR. CHIEF JUSTICE JONES concurs in the dissentingopinion of MR. JUSTICE HYDRICK.
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