| S.C. | Jan 15, 1884
The opinion of the court was delivered by
Several questions have been raised in this appeal; but from the view which we take of the case it will not be necessary to consider but one of these questions. This lies at the threshold, and will dispose of the case, so
One Mrs. Ann Cooley, of Anderson county, in contemplation of marriage with Howard Duckworth, entered into a marriage-contract with the said Duckworth, whereby her property real and personal was to remain hers, subject only to the demands-then against her, further stipulating “ that she was to be the real owner and possessor during her natural life, and to be disposed 'of by her according to her own discretion.” No trustee was-named in the deed; but in pursuance of a petition presented to-the Court of Equity in 1852, the defendant, W. M. Cooley, was-appointed said trustee, who gave bond to the commissioner in equity in the penal sum of $2,600 for the faithful discharge of' his trust, with J. W. Poore, G. W. Turner and Reuben Poore as his sureties. Shortly after this appointment, William M. Cooley,, the trustee, received as the trust funds the sum of $1,356.76.. The interest upon this fund seems to have been paid regularly up to March, 1865, when there was an alleged investment in Confederate bonds of $500. The interest continued to be paid on the remainder until March, 1869.
Mrs. Duckworth died in 1879, having lived continuously with the trustee for the last six years of her life. She died intestate, having made no disposition of her estate, and leaving-as her heirs-at-law and next of kin and distributees the defendant, W. M. Cooley, Francis Moore and the children of Mrs. J. W. Poore, deceased. No administration has ever been taken upon her estate. This action has been brought by the plaintiff' Richardson, who claims one-third of the estate as assignee of' Francis Moore. The action is upon the trust bond, and the-complaint prays an accounting with the view to ascertain the amount in the hands of the trustee, and that plaintiff have leave-to issue execution in severalty against Cooley, the trustee, for one-third of the amount ascertained to be due by the master-which he claims as assignee. The defendant answered, setting up among other defenses — First, that the complaint did not state-facts sufficient to constitute a cause of action; and, second, that.
We cannot see why this defense was 'not sustained. It was. apparent upon the record that the deceased had died intestate, and that no administration had been taken out upon her estate. 'The property in question belonged- to her and was subject to administration at her death, and we do not know by what authority her next of kin or their assignees could claim possession, except through an administrator. This is not like the case of Huson v. Wallace, 1 Mich. Eq. 1, where there was but one distributee- and no debts. On the contrary, here there are numerous distributees besides creditors, or at least one party setting up claims against the estate. Mrs. Duckworth had the right, under the marriage contract, to dispose of the property as she saw fit; but she made no disposition, and the only claim which the plaintiff or the other parties can set up is through the statute of distributions; and there is no mode of enforcing such claims except by regular administration.
The case of Kaminer v. Hope, 9 S. C. 253, has no application Rere. There the question was, whether the bond of the administrator, executed to the Probate judge, could be sued in the name of the distributees to whom the administrator was accountable ; but there is no such question as that here. There it was admitted that the administrator was accountable to the distributees, and the question turned on that fact. Here it is denied (and there is no doubt about the correctness of the position) that the defendant can be held accountable to the distributees in the first instance. It was held in the case of Kaminer v. Hope that there could be no title in the distributees of an intestate estate, except in due course of administration; and in all suits brought in that character the administrator is a necessary party, referring to 1 Han. Ch. Hr. 295; Story Eq. PL, § 170; Bradford v. Felder, 2 McCord Ch. 169; Farley v. Farley, 1 McCord Ch. 506; Gregory v. Forrester, Id. 318; Humphreys v. Humphreys, 3 P. Wms. 349. On this ground we think there was error in the judgment below.
It is the judgment of this court that the judgment of the Circuit Court be reversed.