49 S.C. 563 | S.C. | 1897
The opinion of the Court was delivered by
This was an action on the equity side of the Court of Common Pleas for Chesterfield County, in this State. The complaint alleged that Nancy J. Perkins departed this life leaving a last will and testament, of which the defendant, H. D. Malloy, was appointed executor, and that he qualified as such executor, and then declined to carry out the will, and renounced his office as said executor; whereupon the plaintiff, John H. Perkins, was appointed by the court of probate for said Chesterfield County to the office of administrator de bonis non mm testamento annexo of said Nancy J. Perkins, deceased; that as such administrator he had sold the personal estate of his testatrix, but found that the assets in his hands would not pay all the indebtedness of such estate; that creditors were threatening to sue the estate; that it would be necessary to sell all or a part of the real estate of his testatrix to aid the personalty in his hands in the payment of debts; that he was ready and anxious to make an accounting of all his actings and doings as said administrator, &c.; that the estate should
Pursuant to this order, G. J. Redfern, as clerk of the court, paid to Benjamin T. Perkins $80 on account of his distributive share, and took his receipt therefor, and all the other parties, except Rufus R., were paid the like sum by the said clerk. Thereafter, to wit: on the 4th day of May,, 1895, upon an allegation by Benjamin T. Perkins that he had not received the sum of $100, under the 5th clause of his mother’s will, his Honor, Judge Watts, made the following order: “Ordered and decreed, that it be referred to R. T. Caston, Esq., as special referee, to take testimony as to the payment of said legacy, and that he report his findings of fact to the Court of Common Pleas.” In pursuance of this order, testimony was offered before said special referee as to the payment of the special legacy of $100; but the plaintiff opposed the claim upon three grounds: 1st, that it had been paid; 2d, that it was barred by the statute of limitations; 3d, that it was res judicata. The testimony developed this contention: First, the administrator made oath that, just after his mother’s death, his brother, Benjamin T. Perkins, had in his possession a mule of the testatrix, which he said he would take instead of the $100, with which to buy a horse, saddle, and bridle; that this mule had been returned by Benjamin T. in the lifetime of his mother, and as her agent, to the auditor of Chesterfield County, as the property of his mother, Nancy J. Perkins, for two years. On the other hand, Benjamin T. denied the conversation alleged to have occurred between his brother, John H. Per- . kins, as the administrator as aforesaid, and said that the
The said special referee reported, holding that Benjamin T. Perkins should be required to account for the mule be
We have been careful to state in chronological order the different steps in this action, in order that we might understand the same ourselves, and in order that the expression of our own views might be responsive to the equities of the different parties to this controversy. We will ask that the grounds of appeal be set out in the report of the case. We must reverse the decrees herein involved, and order the special legacy of $ 100 paid to Benjamin T. Perkins. When the respondents here abandoned their defense of res jtidicata to plaintiff’s claim, they left the whole matter open as a question of fact, reinforced by the plea of res judicata by the appellant. What we mean is this: if the plaintiff and the parties associated with him in the opposition to the claim of Benjamin T. Perkins had adhered to their claim that the said Benjamin T. Perkins could not maintain any claim for this specific legacy, after assenting to and ratifying the decree of Judge D. A. Townsend, of the 14th February, 1895, on the doctrine of res judicata, the result would have been different; but now, having abandoned that wholesome doctrine, they have put it in the power of Benjamin T. Perkins to invoke the doctrine of res judicata, when he
It is the judgment of this Court, that the decrees appealed from be reversed, and that the action be remanded to the Circuit Court, with directions to enter a decree in favor of the said Benjamin T. Perkins for the $100, as claimed by him.