116 S.E. 279 | S.C. | 1923
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *257 February 26, 1923. The opinion of the Court was delivered by Action in the Court of Common Pleas by a creditor against an administrator de bonis non, the heirs at law and distributees of an intestate, and a real estate mortgage creditor, seeking (1) to establish a claim founded on an account for goods sold and delivered to the said intestate, (2) to subject real estate descended to the payment of the plaintiff's debt and of any other debts that might be established in the action, and (3) to marshal assets for that purpose.
The intestate, C.W. Shoemake, died on or about August 15, 1918. The defendant W.H. Howle was duly appointed administrator of his estate on November 23, 1918. Having entered upon the discharge of the duties of this trust, he gave due notice, pursuant to the requirements of the *259 statute (Section 3630, Civil Code 1912), for creditors of the estate in his charge to render an account of their demands, duly attested. He collected the personal assets of the estate and applied them to the payment of such debts of the deceased as were ascertained to be due within the 12 months allowed by law for that purpose (Section 3630). On December 26, 1919, about one year and one month after the date of his appointment, pursuant to notice of application duly published (Section 47, Code of Civil Proc. 1912), the Probate Judge of Darlington County granted him an order of discharge. The order recited, among other things, that no cause had been shown against the application, and that "from an examination of the situation of the affairs of the said estate" it appeared that "the petitioner had faithfully and honestly discharged the trust and confidence reposed in him," and thereupon adjudged that the petitioner was "from henceforth and forever discharged from all liabilities as administrator as aforesaid." The claim of the plaintiff, McNair, was not presented to or filed with the administrator within the 12 months allowed for the ascertainment of debts and was not rendered or filed prior to his order of discharge. About 6 months after the date of his discharge as general administrator on May 14, 1920, W.H. Howle was on his own petition appointed by the Probate Court of Darlington County administrator debonis non of the estate of C.W. Shoemake, the intestate. Thereafter on July 26, 1920, the plaintiff brought this action. The answers of the defendants denied liability generally, and set up defenses based upon the failure of the plaintiff to render his demand within the time required by law, and pleaded the full administration and final settlement of the estate by the general administrator. The cause having come on for trial and the plaintiff's counsel having admitted in open Court the facts to be substantially as above stated and having further conceded that the order discharging the general administrator had not been vacated *260 or set aside, the Circuit Judge held: (1) That the administrator was a necessary party; (2) that the order of the Probate Court undertaking to appoint the former general administrator as administrator de bonis non was without legal effect; (3) that to grant the plaintiff the relief prayed would be to accord him preferential treatment over the other creditors whose claims had been settled, and thus permit him to take advantage of his own dereliction, and thereupon adjudged that the plaintiff's action be dismissed. The plaintiff appeals upon exceptions which challenge the correctness of that adjudication. The grounds of the Circuit Judge's action will be considered and disposed of in the order above stated.
1. First, we think the Circuit Court was correct in holding that the administrator was a necessary party to the action. Any claim or demand, payable or adjustable in money, is a claim primarily against the personal estate of the decedent. Mobley v. Cureton,
The logical application of that rule, grounded upon the elementary principles above adverted to, led to the rendition in the early judicial history of this state of a decision which seems to have been for many years a subject of controversy and a source of embarrassment to bench and bar. That was the decision in De'Urpheyv. Nelson, 1 Brev., 289, rendered by the Constitutional Court in 1803, holding that —
"Lands descended are liable for the payment of the ancestor's debt, and may be sold under a judgment recovered on that debt against the administrator, although the heirs were not parties to the action."
For an interesting review and discussion of the decisions following De'Urphey v. Nelson, see the opinions of Mr. Chief Justice McIver in Huggins v. Oliver,
While the line of decisions referred to clearly illustrates the elementary rule that in an action by a creditor to enforce a claim against the estate of an intestate the administrator is the only necessary party, except where such enforcement involves a sale of lands in the possession of the heirs, and as clearly enunciates the proposition that lands in the exclusive possession of the heirs may not be subjected to payment of the ancestor's debts except in a suit to which the heirs are parties, the precise question here involved as to the necessity for joining the administrator in an action against the heirs to establish a debt of the ancestor and to subject the descended lands to the payment of the alleged debt does not seem to have been expressly decided. In Vernon v. Ehrich's Ex'rs, 2 Hill, Eq., 259, 261, Judge Harper, while conceding that in a suit in equity the administrator was a necessary party, intimated that an action at law by a creditor might be sustained against the heir alone, and that in such an action "the executor neither would nor could be joined." There are expressions of like import in Reeder v. Speake,
"But we do not desire to be regarded as conceding that the administrator was not a proper party. It is true that, under the former system of pleading, the administrator was not a proper party to an action at law against the heir, for the debt of the ancestor, on account of real estate descended; but it was otherwise in a proceeding in equity, where the administrator was not only a proper, but a necessary party. Story, Eq. Pl. §§ 173, 176, 180; Vernon v. Valk, 2 Hill, Ch., 257; Goodhue v. Barnwell, Rice, Ch., 239, recognized in Mobley v. Cureton,
In the case at bar the plaintiff's cause of action rests primarily upon the validity of his unproved money demand against the intestate's estate. Before he may subject the descended real estate to the payment of that demand, his claim must first be established as a "just debt" of the intestate. Section 3696, Civil Code 1912;Hand v. Kelly,
2. In holding that the appointment of the defendant W.H. Howle as administrator de bonis non was a nullity, in that his order of discharge as general administrator had not been vacated, and that said defendant was not competent to appear and defend this action as the duly qualified personal representative of the intestate, we think the Circuit Court was in error. The appointment of the defendant Howle as administrator de bonis non by the Probate Court of Darlington County was a judgment of a competent Court and cannot be impeached collaterally, except for a jurisdictional defect affirmatively appearing upon the face of the record. In re: Brown's Estate,
"Executors or administrators who have been duly discharged can no longer exercise the functions of their office, nor can they be required to make further accounting in the *266 absence of fraud or error in the entry of the decree discharging them." 23 C.J., 1093, § 258.
If the order of discharge abrogates the powers and discharges the liabilities of the administrator, it is equivalent to a judgment vacating the office of administrator. If at the time of an application for the appointment of an administrator de bonis non the office of administrator is vacant by virtue of the outstanding order of discharge previously granted the general administrator, then the Probate Court would be free to deal with the application for further administration upon the merits of the showing made for that purpose. Where an administrator has fully, fairly, and faithfully administered the estate in his hands, and, after due advertisement (Section 47, Code of Civ. Proc. 1912) and after due service of personal notice upon those entitled thereto, has obtained an order of discharge from the Probate Court, such decree should protect him from further liability and should relieve him from any obligation again to take up the burden of the trust by reason of after-discovered claims or assets. See Quick v.Campbell,
"It is usually held that the approval of the final report of an executor or administrator and his discharge is not conclusive that the estate has been wholly settled so as to preclude the appointment of an administrator de bonis non." 24 C.J., 1144, 1145, § 2756, and cases cited.
The unrevoked order of discharge in the case at bar, establishing the fact of a vacancy in the office of administrator, furnished the Probate Court with, rather than deprived it of, the essential basis of fact for the appointment of an administrator de bonis non. But is *267 a vacancy in the office of the administrator caused by the discharge of the general administrator such a vacancy as will authorize or warrant the Probate Court in appointing an administrator de bonis non? The statute law of the state (Section 3608, Civil Code 1912) provides that —
"When a sole surviving executor or administrator shall die, the estate in his hands not having been fully administered, it shall be the duty of the Judge of Probate * * * to grant letters * * * of administration de bonis non of the estate."
The duty thus expressly imposed upon the Probate Court in case of the death of an executor or administrator does not, as we apprehend, deprive that Court of its plenary jurisdiction, under the broad constitutional and statutory powers conferred upon it (Const., 1815, Art. 5, § 19; Sections 42-47, Code of Civil Proc. 1912; Sections 3605, 3663, Civil Code 1912) to appoint an administrator debonis non, if otherwise proper, whenever a vacancy occurs in the official representation of a decedent's estate, whether due to death, revocation of letters, discharge, or other cause. 24 C.J., 1142, § 2735. Thus Section 3651, Civil Code 1912, provides for the revocation of letters of administration, etc., in certain cases of change of domicile or of absence from the state. Obviously, such a revocation would not preclude the appointment of another administrator.
If the estate had already been partially administered prior to the revocation, the new administration is of necessity an administration de bonis non, since the term or title is merely an abbreviation of de bonis non administratis, meaning "of the goods not administered." Black, L.D. The jurisdiction of the Probate Court being thus established and disclosed by the decree discharging the general administrator and creating a vacancy in the official representation of the intestate's estate, the judgment of the Probate Court appointing the administrator de bonis non is conclusive of the facts necessary to sustain it until impeached *268
in a direct proceeding. Ex parte Crafts,
That conclusion is reinforced by this additional consideration. If it were essential to the validity of the grant of letters of administration de bonis non
that the judgment of the Probate Court appointing the administrator in chief and that the order discharging him should be set aside in a direct proceeding, the proceeding based upon the petition of the former general administrator for appointment as administrator de bonis non was to all practical intents and purposes such a direct proceeding and the appointment as administrator de bonis non a revocation of the former orders. The former general administrator was himself the moving party, and by publication of the prescribed statutory notice all persons interested were afforded the opportunity to contest the appointment. In McLaurin v. Thompson, Dud., 335, it was held that, where an administrator left the state and the Ordinary granted letters of administration to another, this, without any other proceeding, was a sufficient judgment of revocation of the authority of the first. That decision is recognized and approved in In re: Mears,
3. The third ground upon which the Circuit Court's order of dismissal appears to have been based, namely, that to grant the plaintiff the relief sought would be to accord him preferential treatment over other *269
creditors and permit him to take advantage of his own delinquency, we are constrained to hold, is also untenable. We have no statute of nonclaim in this state, and however desirable it might be from the standpoint of public policy to attach by judicial construction something of the force of such a statute to Section 3631, Civil Code 1912, providing that if any creditor shall fail to give in a statement of his debts against a decedent's estate within the 12 months allowed by Section 3630 for ascertaining the debts due from the deceased, "the executors or administrators shall not be liable to make good the same" the terms of the statute itself, considered in the light of prior decisions of this Court, preclude the constructions suggested. The primary object of the statute is to exempt executors and administrators from liability for a devasavit where they have administered and distributed the estate in their charge without reserving assets which would otherwise have been applicable to the delinquent creditor's claim. Crane v. Moses,
In view of the foregoing general principles, it is clear, as respondents virtually concede in argument, that the validity of the Circuit Judge's finding or ruling depends upon whether the admitted facts established such laches on the part of the plaintiff in the case at bar as deprives him of a right of action. In the case of Millerv. Mitchell, supra, Chancellor Harper, referring to the statutory requirement that creditors shall render their demands within 12 months, says:
"It is their duty to render them accordingly, and they are guilty of laches if they omit it."
He further holds that such laches will "not be permitted to work an injury to an innocent third person." The view of the Circuit Judge was that the failure of the plaintiff to present his claim within the 12 months and before the final settlement of the general administrator would result in injury to other creditors by giving the plaintiff a preference if he were allowed to establish his demand and proceed against the land. We are unable to find in the record an adequate basis of fact for that inference. All creditors *271 who presented their claims were settled with in full by the administrator out of the personal assets. Some of them appear to have accepted a little less than the face of their claims, but there was a balance of about $50 left in the hands of the administrator after paying all claims presented, and the real estate was as available then as now to any creditor who might have desired to subject it to the payment of his demand in full. The creditors who presented their claims appear to have been content to accept from the personal assets a satisfactory settlement that did not entail the delay and inconvenience of a resort to the real estate. How, in such circumstances, the nonpayment of the plaintiff, which results in relegating him to his remedy against the real estate, could work an injury to the other creditors who had been promptly paid and satisfied, or result in giving the plaintiff a preference over them is not apparent. It does not appear that the plaintiff's attempt to go upon the land will result in the full payment of his claim, or that, if he had presented his claim in due time, the other creditors could have been in any wise benefited. We are therefore clearly of the opinion that the plaintiff's negligence in failing to render a statement of this demand within the 12 months cannot be held to have worked such injury to other creditors as would deprive him of a right of action upon his alleged debt.
Whether such laches or delinquency injuriously affected the distributees and heirs at law of the intestate in such a way as would deprive the plaintiff of his right of action against them is a question not directly raised by the appeal record. Attention of counsel, however, is directed to the case of Brock v. Kirkpatrick,
For the reasons stated, the judgment of the Circuit Court is reversed, and the cause remanded to that Court for a new trial.
Reversed.
MR. CHIEF JUSTICE GARY, and MESSRS. JUSTICES WATTS and FRASER concur.
MR. JUSTICE COTHRAN did not participate.