Hall v. Hall, 45 S.C. 166

Hall v. Hall

45 S.C. 166 | S.C. | 1895

The opinion of the Court was delivered by

Mr. Justice Gary.

The defendant, Stacy F. Hall, was appointed guardian of the person and estate of her infant daughter, Sallie P. Hall, by the probate court of Daurens County, in October, 1874, and immediately thereafter took charge of her ward’s estate, consisting of a farm in Daurens County, and received the rents therefrom until 1890, when plaintiff married and took possession. The plaintiff became of age in 1891, and soon thereafter made demand on her guardian for a settlement of her estate, which being refused, she instituted this action for an accounting against said guardian, and John T. Chapman, one of the sureties on her bond, and the heirs at law of F. M. Davenport, the other surety, who died before this action was commenced. The case was heard by his Honor, Judge Witherspoon, on exceptions to the report of the master, whereupon he rendered a decree, which, together with the exceptions both on the part of the plaintiff and defendants, will be incorporated in the report of the case.

We will first consider the exception on the part of the plaintiff.

Exception 1. In considering this exception it may be well to refer to the statutory law of our State on this subject, which is as follows: “The judge of probate, on appointing a guardian to any estate, shall require him to enter into bond to himself and his successors in a penalty of double the amount of the estate, and shall have the same power as to relieving the sureties of a guardian which is given to him by section 2031, in the case of relieving the sureties of an administrator.” Rev. Stat., section 2170. “It shall be the duty of the judge of probate in whose office an administration bond is lodged, upon a petition filed by any of the *178sureties to the same, who conceive themselves in danger of being injured by such suretyship, to summon the administrator before him, and make such order or decree for the relief of the petitioner as may not impair or affect the rights of the parties interested in the estate.” Rev. Stat., sec. 2031.

1 Much of the confusion as to the law upon this question, we think, arises from the attempts to reconcile the dicta of conflicting opinions, instead of interpreting the statutes in such a manner as to accomplish the purpose for which it was enacted. Without undertaking to review the many decisions of our courts of last resort on this subject, we are content to state the principles deducible from them that are applicable to this case: 1st. When the surety on a guardian’s bond files a petition to be discharged from liability and the Court grants an order for such discharge, and a new bond is executed, but no new letters of guardianship are issued, the surety is liable for all the propercy of the ward in the hands of the guardian at the time of the discharge. 2d. Such surety, however, is not liable for the property of the ward that may come into the hands of the guardian after the surety has been discharged. Chief Justice O’Neall, delivering the opinion of the Court in Trimmier v. Trail, 2 Bailey, 480, expresses the views which we entertain upon the question, in the following language: “If the ordinary, on citing the administrator to appear, at the instance of his sureties, should merely take a new bond, with new sureties from him, this would not discharge the former sureties from a past liability, although they would not be liable to a future one. It is also, I think, unquestionable that the new sureties would be liable for any funds which the administrator then had in his hands. Joyner v. Cooper, decided at Charleston in February last (ante, p. 199); McDowell v. Caldwell, 2 McC. Ch., 55, and The Treasurer v. Taylor, decided at this term. In such a case the surety would be cumulative; and the creditors or distributees would have the right to recover the funds from the first as well as the second sureties. In the language of *179Judge Colcock, in the case of Cureton v. Shelton: ‘Admitting that the discharge could operate as to future liabilities, it cannot affect those which did exist. There is no power which could release the securities from such.’ 3 McC., 417. If, however, at the time a new bond is given, no liabilities have attached, as where the administrator has legally inventoried and sold the estate, but has not received any of the funds, then the liability for the failing to account would be cast on the new sureties alone.” See, also, Bobo v. Vaiden, 20 S. C., 279; Gilliam v. McJunkin, 2 S. C., 442; McKay v. Donald, 8 Rich., 331; Ordinary v. Wallace, 1 Rich., 507; Hill v. Calvert, 1 Rich. Eq., 56; McMeekin v. Huson, 3 Strob., 327; Glenn v. Wallace, 4 Strob. Eq., 149; Owens v. Walker, 2 Strob. Eq., 289; Field v. Pelot, McM. Eq., 369; Shelton v. Cureton, 3 McC., 412; Enicks v. Powell, 2 Strob. Eq., 196; Waterman v. Bigham, 2 Hill, 512; Alexander v. Bullard, Rice Eq., 23. The first exception is overruled.

2 Exception 2. This exception relates to the testimony of A. W. Burnsides, taken de bene esse, which was objected to on the ground that there was nothing in the record to show that the person before whom it was taken was an officer authorized by law to take such testimony. The defendants’ pttorneys served a notice on plaintiff’s attorneys, that they would take the testimony of Burnsides “before W. W. Gilbert, a notary public for the State of Georgia, &c.” The examination was duly had in accordance with the notice, various questions being propounded on cross-examination on behalf of the plaintiff. The deposition was forwarded by mail to the clerk of court for Green-ville County, with the formalities required by law. The envelope was sealed,.and across its flap was written: “W. W. Gilbert, [u. S.] N. P. & J. P., notary public authorized to take testimony.” No objection was made to the opening- of the deposition, but the introduction of the testimony was objected to on the ground, as stated in the master’s report, “that it was not the best evidence of the facts-sought to be *180disclosed.” The failure of the plaintiff to object to the testimony on the ground stated in the exception was a waiver of such objection. The second exception is overruled.

Exception 3. This exception was predicated on the fact that the testimony of A. W. Burnsides was inadmissible. The exception raising the question as to the admissibility of Burnsides’ testimony having been overruled, the third exception is also overruled.

3 4 Exception 4. This Court is satisfied that his Honor, the Circuit Judge, was correct in sustaining the finding of the master, that an order was passed by the probate judge of Eaurens County in 1882, discharging the surety, F. M. Davenport, from all further liability on said bond. His Honor was also correct in deciding that an accounting was not necessary before the 'surety could be discharged from further liability. Gilliam v. McJunkin, 2 S. C., 442. Under the principle hereinbefore announced, it was not necessary that the letters of guardianship should be revoked in order to discharge the surety from future liability. The fourth exception is overruled.

5 Exceptions 5 and 7. These two exceptions will be considered together. The land was not set apart to Mrs. Winnie B. Davenport as a homestead, but in lieu of her claim of dower. In relinquishing her right of dower, she gave a valuable consideration ‘for the land set apart to her. Having given valuable consideration for the land set apart to her, it would be inequitable to allow the plaintiff to enter up judgment against her, and sell this land to pay the indebtedness of F. M. Davenport, deceased. These exceptions cannot be sustained.

Exception 6. The plaintiff’s attorneys abandoned this exception, and it will, therefore, not be considered.

We come now to a consideration of the defendants’ exceptions. The principles hereinbefore announced show that the questions raised by the first and second exceptions are immaterial, and need not be considered. We see no error *181on the part of the Circuit Judge, as alleged in the third exception. Indeed, the defendants’ attorneys, in their argument before this Court, did not discuss either the first, second, or third exceptions of the defendants.

It is the judgment of this Court, that the judgment of the Circuit Qourt be affirmed.