44 S.C. 145 | S.C. | 1895
The opinion of the court was delivered by
The two foregoing actions were heard together in the Circuit Court, and have been presented in this court on appeal together. The first named is an action by a lunatic by his committee, and by such committee in his representative character and as an individual against the executors of the last will of William Ashley, the elder, and all the lega
The second named
Testimony was taken in both actions before the master, and the actions came on for trial before his honor, Judge Izlar, sitting as a chancellor. By his decree in the first action he recommitted it to the master for further testimony (his decree will be set out in the report of the case), and he dismissed the second action for failure to state facts sufficient to constitute a
The evidence seems to establish that, when Joseph Ashley, as committee of the lunatic, brought his action against the executors of his father, William Ashley, the elder, to recover from the estate of such testator the sum of $5,400, as the value of the alleged services of the luuatic, William Ashley, the younger, rendered to the lunatic’s father for twenty-seven years, at $200 per year, L. A. Ashley was guilty of a wrong when he connived at this step of his uncle, Joseph Ashley. However, we must not forget that this court decided that Joseph Ashley was not entitled to recover anything from the executors of his father’s will on account of the alleged services of the lunatic for twenty-seven years; and now, if we were to hold that this sum of $140, for each year’s board and maintenance of this lunatic, should not be paid to L. A. Ashley for the eight years’ eare of the lunatic, on the ground that the lunatic’s services, voluntarily rendered to him by L. A. Ashley, were worth his board and maintenance, we would, to a certain extent at least, be impinging upon the former decision of this court. We now say that the wisdom of the judgment of this court, as set out in 25 S. O., 394, has’been fully vindicated by subsequent events. This is a court of equity that now considers this contention, and it is necessary that our conclusions shall accord with the demands of good conscience. We are satisfied, after a careful examination of all the facts embodied in the case relating to the payment to L. A. Ashley for eight years’ care and maintenance of the lunatic of the sum of $1,120, must be sustained.
Under these circumstances, namely: with a fund already in his hands, the annual interest from which had proved fully sufficient for his support and maintenance, aud with the lunatic in robust physical health, coupled with the fact that, under his father’s will, his whole estate, real and personal, was made liable for the support of the lunatic in case the Stallings fund failed, or in the event from aDy other cause said lunatic should lack a proper support, this new committee, Joseph Ashley, on the 13th April, 1880, in the Court of Equity, began the contention with his father’s executors, to make them pay over $5,000 for over twenty-four years’ work of the lunatic. Now no sane man can say that this suit was started to procure sustenance for the lunatic; that he already had. Nor was it that his future was precarious; for, as we have already seen, that
We stated a while ago that this testimony is uncontradicted by witnesses; that statement is correct, but plaintiffs have referred to the result of the case of Joseph Ashley, as committee, against the executors, as set out in 15 S. C. and 25 S. C., supra, as well as to the high character of the two attorneys who were retained by Joseph Ashley to conduct this litigation — ex-Judge Maher and Mr. Isaac M. Hutson. But it no where appears in the “Case” that either one of these gentlemen was informed of his motive in bringing such action. It is not recognized as law in this State, that if an attorney or attorneys of character advise a litigation, that such fact establishes the existence of a probable cause of action. All the effect the law accords to such lawyer’s opinion is that it should be considered by the jury, or the judge when reaching a conclusion in the pursuance of such a question of probable cause or not. This is the rule as stated by Mr. Justice McIver, in Caldwell v. Bennett, 22 S. C., 9: “We think the true rule is that after the jury (this was a jury case) have been instructed as to what constitutes probable cause, as matter of law it is for them to say, from a review of all the facts and circumstances proved to have been present to the mind of the prosecutor at the time he commenced the prosecution, or to the plaintiff at the time he commenced his civil action (italics ours) whether ther.e was or not probable cause for such proceedings.”
The Circuit Judge reached the conclusion that there was probable cause in the action of Joseph Ashley against the ex
In the case at bar, we fail to see that the propriety of a resort to a suit in equity by this trustee has been established, nor can we agree that this committee had the right thus to jeopardize this trust estate in his hands. We see by his returns that he paid his attorney $400, to expenses $144.25, and for costs $724.65, aggregating $1,266.90, out of an estate whose corpus was only $2,000, thus leaving in the hands of the committee $733.10 of that corpus, and this last amount is to be reduced by commissions and other legitimate expenses of such committee. Can a Court of Equity be expected to sanction such a destruction to a solemn trust? These sums, as proper
It is the judgment of this court, that the judgment of the Circuit Court as to the first action be modified as herein required; and the action is remanded to the Circuit Court for the formulation of a decree, after the accounts are recast as required herein by the master for Barnwell County. It is the further judgment of this court, that the judgment of- the Circuit Court in the second action is affirmed.
Commenced September 28, 1892.
April.