54 S.E. 768 | S.C. | 1906
July 16, 1906. The opinion of the Court was delivered by The facts of this case are fully set out in the report of the master, which was confirmed by a formal order of the Circuit Court. The master's report and the defendant's exceptions will be incorporated in the report of the case.
The first, second and third exceptions either assign error in the findings of fact by the Circuit Court, or present questions of law that are dependent upon findings of fact, and cannot be sustained, unless the findings of fact upon which they rest are decided in favor of the appellant. As this Court is satisfied with the findings of fact by the Circuit Court, these exceptions must be overruled.
We proceed to the consideration of the fourth exception. In what purported to be a final settlement of the estate of John P. Cheek, deceased, at the instance of Martha P. Cheek, executrix of his estate, on the 11th of October, 1882, in the probate court, it was ascertained that the share of Thomas Cheek in the estate of Willis D. Cheek was $282.05. The decree of the probate judge concludes as follows:
"It is ordered, decreed and adjudged, that Martha P. Cheek, as executrix of John P. Cheek, deceased, do pay off the claims of Mary Taylor, deceased, to her heirs at law, next of kin and distributees, and also the claim of Thomas Cheek, deceased, to his heirs at law and next of kin, as established in this accounting, and after paying off said claims, and making satisfactory proof of the same to this office, she be discharged from her trust." *534
In Koogler v. Huffman, 1 McC., 495, the Court uses this language: "In the argument below, it was contended that the decree and proceedings in the court of equity ought not to be given in evidence, because the defendant was not a party to them; and the general doctrine that judgments can not be given in evidence, except between parties and privies, was relied on. As to this form of objection, the law is clear upon collateral matter, any judgment or decree may be introduced. All that is meant by the rule is that the rights of a party cannot be determined on conclusively unless he be a party." This case is cited with approval in Phillips v. Yon,
Martha P. Cheek was a trustee as to the funds in her hands belonging to the estate of Thomas Cheek, deceased. The proceedings in the probate court on the 11th of October, 1882, were admissible for the purpose of showing that Martha P. Cheek, as executrix, held in her hands at that time, at least the amount mentioned in said decree, and there is no testimony tending to show payment thereof, nor that she did anything thereafter manifesting an intention to terminate her trust. Under such circumstances the defense of the statute of limitations was properly overruled.
The fifth exception is the last to be considered. In the first place, the question presented by this exception was not made an issue by the pleadings, but waiving such objection, it cannot be sustained, as the heirs at law and next of kin of Thomas Cheek were not parties to the proceedings in the probate court, and were not bound by the decree made in said proceedings. But in any event the plaintiff, as administrator, had the right to bring this action. McCorkle v.Williams,
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. *535
