Lowe v. Carlisle

33 S.C. 597 | S.C. | 1890

Opinion by

Mr. Justice McGowan,

Elias Lowe died intestate in 1870 and his widow Lucy administered, giving bond with Perry Dye as surety. Mrs. Lowe died in 1873, and the said Dye became administrator de bonis non of Elias Lowe’s estate, and gave bond with Simpson Bobo as surety thereon. In 1885, proceedings were instituted in the proper Probate Court by the distributees of Elias Lowe against Perry Dye (then absent from the State) and Simpson Bobo for a settlement of the estate. Perry Dye appeared by counsel. To this proceeding no representative of Mrs. Lowe’s estate was a party. The Probate Court charged Perry Dye with a balance in his' hands on account of his administration, and with a further sum on account of a devastavit by Mrs. Lowe, the first administratrix. From this decree there was no appeal, and Bobo paid the balance arising from Dye’s administration of the assets received, but refused to pay for Mrs. Lowe’s devastavit.

Thereafter, in September, 1888, one of the distributees of Elias Lowe’s estate brought this action against the executor of Simpson Bobo, deceased, for plaintiff’s share of the unpaid decree of the Probate Court. The Circuit Judge (Hudson) charged the jury that the liability of Mrs. Lowe could not be ascertained in the absence of any personal representative of her estate; and therefore that so much of the Probate Court decree as attempted to do so, was error. Under this charge the verdict was for defendant, and plaintiff appealed. Held:

1. That Dye being represented by counsel was bound by the decree then made, and so was Bobo, his surety, who was also a party to that proceeding.

2. That this decree of the Probate Court having charged Dye with the devastavit of his predecessor in office (which it was Dye’s duty to collect), Bobo, the surety and a party to that decree, not having appealed, is now bound by it.