37 S.C. 174 | S.C. | 1892
The opinion of the court was delivered by
Joseph Douglass died, in 1865, intestate, leaving as his heirs at law a widow, Narcissa, and eight children, viz.: Thomas A., Joseph, J. H., and M. A. Douglass, and daughters, Sarah J., now Campbell, M. R., now McKay, M. E., now Smith, and E. A. Douglass, now Lyles. On December 6, 1865, administration upon his estate was granted to his sons, Joseph Douglass, jr., and Thomas A. Douglass. The defendant’s testator, EL F. Adickes, was surety on the administration bond then executed. Joseph Douglass, jr., made two returns of his administration, and died unmarried in 1869, leaving a will, of which Thomas A., his co-administrator, was appointed executor. Thomas A. Douglass made one return of his administration, the last one made. In August, 1881, EL F. Adickes, the surety, died testate, leaving as executrix his widow, the defendant, who qualified, and, as it is claimed, has still in her hands some undivided assets of the estate.
On November 1,1887, Sarah J. Campbell, E. A. Lyles, M. R. McKay, M. A. Douglass, J. EL Douglass, and M. E. Smith filed a petition in York County, S. C., for an account against Thomas A.
On February 4,1888, this action was brought in the name of the then probate judge, to recover from the executrix of the surety Adiokes the amount of the aforesaid decree of the Probate Court. The action was on the administration bond, more than twenty years after its date, in December, 1865. The defendant executrix answered, denying that there had been any breach of the administration bond, and averring, upon information and belief, that the estate of the intestate, Joseph Douglass, sr., had long since been fully settled, and that the surviving administrator, Thomas A. Douglass, was not, at the commencement of the action, and is not now, officially indebted as administrator to the said estate or the distributees thereof in any sum whatever, specifically averring against the correctness of certain items of charge in the account filed in the probate office, upon which the decree of that court was rendered. She also interposed, by way of affirmative defence, (1) the statute of limitations; (2) payment and settlement, actual and by lapse of time; and (31 laches.
An order was passed, substituting the name of William H. McCorkle for J. R. Kennedy, he being then the incumbent of the office of probate judge. A trial by jury was waived, and the hearing below was by the judge, upon testimony taken by a referee under the following order of Judge Fraser: “Upon hearing the pleadings, and it appearing that, preparatory to submitting the legal issues to the jury, the account of the estate of Joseph Douglass, sr., Joseph Douglass, jr., and H. F. Adickes, should first be stated, it is ordered, that it be referred to George W. Gage, Esq., as special referee, to take and state said accounts separately, upon the basis of the issues raised by the pleadings, it being understood that as to the account of Joseph Douglass, sr., the defendant shall be confined to surcharging and falsifying the same as takgn before the probate judge, the same as if this order had not been taken.” The referee took a large amount of testimony, which is printed iu the record. After striking-out the items of charge in the account of the estate of Joseph
Both parties excepted to this report, and the case carne on for trial before JudgeNorton, who, after full consideration, rendered his decision, “That the payments to each of the six children, in whose behalf alone the plaintiff could sustain an action against the surety on the administration bond (the other two children having been principals therein, and the widow being dead, and leaving no jjersonal representatives), exceed the 'amount to which such- distributees would be entitled under the principles hereinbefore announced. It is adjudged that the complaint herein be dismissed,” &c. From this decision the plaintiffs appeal to this court upon various exceptions; and the defendant, executrix, gave notice of additional grounds on which the judgment herein should be sustained ; all of which are long, with numerous sub-divisions, and are printed in the brief.
Under this agreement, the administrators bid off the cotton at the sale ordered by the then ordinary, and afterwards resold it at private sale, Joseph Douglass, jr., then being the active administrator. It was claimed for the estate of the surety, that the cotton was purchased by the distributees individually, and that it was error to charge it against the surviving administrator officially, so as to make the estate of the surety liable. The referee, with some hesitation, charged the cotton against the surviving administrator, but, upon exception taken, the Circuit Judge overruled him, and held “that the agreement of the distributees with the administrators to bid off the cotton, to be held and sold on joint account, all sharing the profits or losses of the venture, was a contract to change the title from the administrators to the distributees, and the circumstances show that they so understood it; for why would not a simple request to the administrators to postpone the sale have been
The judgment of this court is, that the judgment of the court below be affirmed.