Kaminer v. Hope

18 S.C. 561 | S.C. | 1883

The opinion of the court was delivered by

Mr. Justice' McIver.

The facts of this case are so fully and clearly stated in the Circuit decree, that it is not necessary for us to do more than to make such a brief statement as will be necessary to indicate the single point raised by this appeal, especially as the case, in different forms, has been before this court on two former occasions when it was reported — first, under the title of Leaphart v. Leaphart, 1 S. C. 199, and, next, under the title of Kaminer v. Hope, 9 S. C. 253, where a full history of the litigation between these parties may be found.

The present action was brought against John C. Hope, as surety upon the bond of Levi Gunter, administrator of Martin T. Leaphart, and, upon his death, continued against the present defendant as his administrator, to recover the amount found due by Gunter as such administrator, as well to the estate of Simon A. Leaphart, of whom his intestate, Martin T., was administrator, as to the plaintiff, Polly Leaphart, as one of the distributees of said Martin T. The proceeding under which these amounts were found due by Gunter, as administrator of Martin T. Leap-hart, was a bill in equity originally filed by Mary Leaphart and’ Polly Leaphart, claiming to be distributees of Simon A. Leap-hart, against Martin T. Leaphart as his administrator. Upon the death of Martin T., Levi Gunter was appointed administrator of his estate, and a contest arising as to who was entitled to administration upon so much of the estate of Simon A. as was left unadministered by Martin T., letters of administration pendente lite were granted to Mary -Leaphart. A bill of revivor was then filed, making Gunter, as administrator of Martin T., and the heirs-at-law of Martin, parties, and under this bill the account was taken which forms the basis of the present action.

The appellant contends that inasmuch as the account was taken in a proceeding in which the estate of Simon A. Leaphart was represented, not by an administrator de bonis non, but only by an administrator pendente lite, it was without authority and not binding, and, therefore, constituted no sufficient foundation-for the present action, because the only person who could demand from the administrator of Martin an account of his actings and doings, as administrator of Simon, was an administrator de bonis non of the latter, and that such accounting could not be had at the instance of Mary Leaphart as administratrix pendente lite.

The respondent, however, makes a preliminary objection to the hearing of this appeal, which must first be disposed of. The objection is, that it nowhere appears in the “Case,” as prepared for argument in this court, that the question now presented by this appeal was ever made or considered in the Circuit Court, and that according to the well-settled rule, we are precluded from considering such question. That such is the rule has been so often declared by this court that it is scarcely necessary to refer to the numerous cases in which it has been announced. It is only necessary, therefore, to ascertain whether it is true as matter of fact that the “Case” fails to show that such a question was made in the court below. We have examined the “Case” carefully and are unable to discover any evidence that such a question was ever presented to the Circuit judge for decision. His decree presents the facts of the case clearly, and discusses the legal questions presented fully and satisfactorily^ and there is no intimation whatever that any such question as that now presented was ever brought to his attention. The grounds of appeal do not assail the correctness of any of the legal propositions laid down in the decree, but simply complain that the Circuit judge “overlooked ” the point now relied upon. It is true that in the first ground of appeal it is distinctly asserted that the point was earnestly pressed upon the court below; but, as we have frequently had occasion to say, we are not at liberty to accept any statement of fact incorporated into the exceptions ■or grounds of appeal, unless such statement appears also in the ■“ Case,” and have found it necessary by a recent amendment of the rules of this court, to distinctly and formally declare the proper practice in this respect.

But this court is always reluctant to dispose of a case upon merely technical or formal grounds, and as the evidence incorporated in the “Case” shows clearly that the accounting relied upon as the basis of the present action was taken in a proceeding to which the administrator de bonis non of Simon A. Leap-hart was not a party, but that his estate was represented in that proceeding by Mary Leaphart, as administratrix pendente lite, and as the question has been fully argued at the bar, we are disposed to relax the rule in this instance, and consider the question made by the appeal, as if there were no technical objection in ■our way.

It does not appear, nor is it suggested, that when the accounting relied upon was taken, Gunter, who was a party to that proceeding, interposed any objection on the ground of a want of proper parties, or in any way questioned the right of an administrator pendente lite of the estate of Simon A. Leaphart, to ■demand an account from him of the administration by his intestate, Martin T. Leaphart, of the assets of the estate of .Simon A., and therefore Gunter would scarcely be in a position now to question the result or effect of such accounting; nor is it clear that Hope, as his surety, could question-it on that ground, «ven though not himself a party to the ■ proceeding in which such accounting was had, especially when the person who is admitted to have had the right to demand such accounting, the administrator de bonis non of Simon A., is now before the court recognizing and adopting, and thereby being bound by, such accounting. <

But waiving this, let us consider the main question presented, whether the administratrix pendente lite of the estate of Simon A. could maintain an action against Gunter as administrator of Martin T., to recover the amount due by him as administrator of Simon A., or could this be done only by an administrator de bonis non of the estate of Simon A.? It is quite true that Gunter, by virtue of his administration on the estate of Martin, Avas not the administrator of Simon, and that whatever balance which may have been due to the estate of Simon by the estate of Martin, was nothing more than a debt due by the one estate to the other. Hence, as was held at the former hearing of this case, (Kaminer v. Hope, 9 S. C. 253,) such a debt could not be recovered by the distributees of Simon, but must be sued for by a proper representative of his estate, and none such being then before the court, Mary Leaphart, Avho had been administratrix pendente lite, having died before the commencement of this action, it Avas necessary that the proceedings should be amended by making the administrator de bonis non of the estate of Simon, a party; Avhiclr Avas subsequently done.

But the question still, recurs, whether the administrator pendente lite Avas not such a proper representative of the estate of Simon, as that she could maintain an action to recover the debt due to her intestate’s estate by the estate of Martin, or could the action be brought only by an administrator de bonis non f It seems to be well settled, both upon principle and authority, that while the authority and power of an administrator pendente lite is much more limited in its nature than that of a general administrator, yet he may bring actions to recover ■debts due his intestate’s estate. The leading case upon the subject, Avhich has been repeatedly recognized since, is the case of Walker v. Woollaston, 2 P. Wms. 576, in Avhich the doctrine above stated Avas distinctly laid down, and in the argument of counsel in that case, which seems to have been adopted by the court, but Avhich is too long to be transcribed here, it is conclusively shown to be fully supported both by reason and authority, and absolutely necessary to effect the objects of such a limited administration. See also the cases of Knight v. Duplessis, 1 Ves. Sr. 325; Ball v. Oliver, 2 Ves. & B. 97; Gallivan v. Evans, 1 Ball & B. 192; Wills v. Rich, 2 Atk. 285.

In our own State, we do not think that the question has ever been distinctly decided, the authorities relied upon by the appellant not being in our judgment directly in point. They are all cases in which the question was, whether the action could be maintained by creditors or distributees, and we are not aware of any case in which the distinct question made by this appeal has -been raised. It is true that in some of the cases strong language is used implying that such an action as this could only be maintained by an administrator de bonis non, but those expressions must be taken with reference to the facts of the cases in which they occur, and signify that, as between creditors or distributees and an administrator de bonis non, the action can only be maintained by the latter.

In Gill v. Douglass, 2 Bailey 387, (which, however, has been qualified by the subsequent case of Ford v. Dangerfield, 8 Rich. Eq. 110,) the action was by the escheator of Lancaster district to recover a balance due by the estate of the defendant’s intestate on his administration of the estate of Dr. Clancy, who had died intestate, leaving no one entitled to claim as next of kin. The court held, that the escheator stood as a distributee and could not maintain the action, which should be brought by a legal representative of the first intestate; but whether such legal representative must necessarily be an administrator de bonis non, or whether an administrator pendente lite would not answer as such representative, is not even hinted at in the case.

In Easterling v. Thompson, Rice 346, an effort was made by creditors to reach the assets of the first intestate through an administrator of the deceased administrator of such intestate, and the court held that they could only proceed against an administrator de bonis non, whose duty it would be to require an account from the administrator of the first administrator, and no question was raised as to what would be the rights or duties of an administrator pendente lite.

In Stevenson v. Wilcox, 16 S. C. 432, the action was brought by the creditors of an intestate against the sureties of an administratór pendente lite, and the court held that such an administrator was accountable only to the general administrator, and not to the creditors or distributees, as he had no authority to pay debts or distribute the assets; but the question, whether an administrator pendente lite could maintain an action to recover a debt due his intestate’s estate, was not, and could not have been, raised in the case.

In Villard v. Robert, 1 Strobh. Eq. 393, the question vras whether a settlement, made by the representatives of an executor, on an accounting had with an administrator de bonis non cum testamento annexo, for assets of the testator, converted into money by the executor in his life-time, was a bar to an action by the legatees against the representatives of such executor; and the court held that it was, because the administrator, de bonis non had a right to demand such accounting from the executor, practically overruling what was said in Smith v. Garrere, 1 Rich. Eq. 123, on this point; but nothing was said as to the right of an administrator pendente lite to bring an action for such accounting.

From this review of the authorities, it seems to us that the English cases establish the proposition, that an administrator pendente lite may maintain an action to recover a debt due the estate of his-intestate, and that there is no controlling authority in this State to the contrary; and inasmuch as to deny this right to such an administrator would, in many cases, practically defeat the object of appointing a limited administrator, by delaying the collection of the assets of an intestate, and thereby, perhaps, incurring the hazard of their entire loss, pending a controversy in the Court of Probate, we think that the doctrine established by the English cases has not only the support of authority, but is well founded in reason. We must, therefore, conclude that, outside of any mere technical objection, this appeal cannot be sustained.

The judgment of this court is that the judgment of the Circuit Court be affirmed.