21 S.C. 21 | S.C. | 1884
The opinion of the court was delivered by
The action in this case was commenced April 12th, 1883. And the plaintiff in her complaint alleges: 1. That Wm. Beverly departed this life intestate on December 5th, 1857, leaving a personal estate, and that his only heirs at law and distributees were his two aunts, Elizabeth Wise and Dorcas Odom. 2. That administration of his personal estate was duly committed to Wm. D. Bridges and Eliz. Wise. 3. That Wm. D. Bridges died in February, 1864, leaving a will, and that the persons named as executors therein having duly renounced, administration cum test. an. of his estate was duly granted to the defendant, Eliza D. Bridges. 4. That Elizabeth Wise died intestate on June 14th, 1878, and letters of administration upon her estate were duly granted to the defendant, John Wise; and that Dorcas Odom died intestate .in May, 1868, “leaving as her
The exhibits filed with the complaint show that the inventory and appraisement of the estate of Wm. Beverly was made on December 31st, 1857, and that sales were made from time to time between January 3d, 1859, and January 6th, 1860, and that the last return made by Wm. D. Bridges, as administrator, showed a balance in his hands on January 1st, 1863, of $660.25.
The defendants interposed a demurrer upon the following grounds: “I. That the plaintiff has not legal capacity to sue. II. That there is a defect of parties in the omission of the administrator de bonis non of the estate of William Beverly, deceased,
The case was heard on the demurrer by Judge Aldrich, who subsequently filed his decree, in which he held that “an administration on the estate of Dorcas Odom is necessary to enable her heirs at law to receive her interest in the estate of William Beverly, deceased,” and also that “an administrator de bonis non of the estate of William Beverly, deceased, is a necessary party, ivho alone can demand an accounting from the personal representatives of the former administrator,” and he therefore sustained the demurrer. He goes on, however, to say that he would give the plaintiff leave to amend by making the necessary parties, if he could see that it would be of any service to her. But the action having been commenced twenty-five years after the execution of the administration bond, and more than twenty years after the last return was filed, he thought that such a lapse of time would raise such a presumption of payment as that it could not be rebutted ; and that as a plea of payment would be a perfect defence to the plaintiff’s claim, it would be useless to protract the litigation by granting leave to amend, and therefore he declined to do so.
The plaintiff appeals, substantially, upon the following grounds: 1. Because of error in holding that the plaintiff did not have legal capacity to bring the action, and that the administrator of Dorcas Odom is a necessary party. 2. Because of error in holding that an administrator de bonis non of Wm. Beverly is a necessary party. 3. Because of error in holding that a plea of payment arising from presumption of lapse of time could be sustained before any plea or answer was put in. 4. Because of error in refusing leave to amend, upon the ground that the action would be defeated by a plea of payment.
There can be no doubt that when a plaintiff brings his action he must state in his complaint the facts necessary to show that some legal or equitable right to which he is entitled has been invaded or violated by the defendant, or that such right is so threatened, as to cause him irreparable damage, if not restrained or prevented by the order of the court. In other words, he must state facts showing that he has a cause of action against some one
Her mother, Dorcas Odom, and Elizabeth Wise are stated to be the sole distributees of the estate of Wm. Beverly, and the fact that her mother subsequently died, leaving her as her sole heir at law and distributee, cannot make her a distributee of Wm. Beverly’s estate. The heirs and distributees of a deceased person are fixed and ascertained by the condition of things as they existed at the time of the death of such person, and at that time the only heirs of Wm. Beverly were Elizabeth Wise and Dorcas Odom. It is quite clear, therefore, that the only person who is entitled to demand and receive the interest of Dorcas Odom in the personal estate of Wm. Beverly is her administrator, and until one is appointed, no one has a right to demand or receive such interest, and, of course, no one has any cause of action to enforce such demand.
So, too, we agree with the Circuit judge that an administrator de bonis non of Wm. Beverly is a necessary party. These views are so fully supported by the authorities that we do not deem it necessary to go into any discussion of them. Bradford v. Felder, 2 Mc C. Ch., 168 ; Petigru v. Ferguson, 6 Rich. Eq., 378; Read v. Read, 8 Rich. Eq., 145; Kaminer v. Hope, 9 S. C., 253; Stevenson v. Wilcox, 16 S. C., 432; Villard v. Robert, 1 Strob. Eq., 393, besides other cases cited in respondent’s argument.
We are therefore entirely satisfied that the demurrer was properly sustained.
The only remaining inquiry is whether there was any error of law in refusing the plaintiff leave to amend. Motions to amend are addressed to the discretion of the court, and therefore are not,
Upon this we can haye no hesitation. As we have seen, the plaintiff has no cause of action whatever, and therefore there was nothing to amend by. The only amendment, if it may be so called, which would have answered any practical purpose, would have been to substitute an -entirely new plaintiff in the form of an administrator of Dorcas Odom, and that, too, when it did not appear that there was any such person in existence. As was held in Trumbo v. Finley, 18 S. C., 305, even under the liberal principles of the code, a plaintiff cannot be permitted to amend by substituting a wholly different and new cause of action; and upon the same principle, where, as in this case, a plaintiff shows that she has no cause of action, it would seem that an amendment substituting another person as plaintiff, who may have a cause of action, would not be allowable, especially where it does not appear that there is any such other person in existence.
It is true that there is a case (Jennings v. Springs, Bail. Eq., *181), in which it was held that it was within the discretion of a chancellor to permit the plaintiff “to amend his bill, upon the payment of the costs of such amendment, by substituting the names of the executors of William Pressley for his own; the bill having been filed by him, as their agent, and his own name erroneously inserted as complainant.” But it will be observed that the court express no opinion as to the propriety of allowing such an amendment, and simply confine themselves to the remark that it was within the discretion of the chancellor. We have not been able to find any case in which Jennings v. Springs, has been
So that, even if Jennings v. Springs still be authority (about which there may be some doubt in view of the provisions of section 194 of the code of 1882, as construed in Trumbo v. Finley, supra), it at most only decides that such an amendment is within the discretion of the chancellor, and if so exercised it will not be disturbed; but whether such discretion, by which a new action is, practically, authorized under the guise of an amendment, should be exercised, is a totally different question. In this case the staleness of the claim, especially as no reason was suggested to account for the long delay, was an amply sufficient reason for refusing the leave to amend, as in Lancaster v. Seay, supra; and the further fact, that the amendment would practically amount to the bringing of a new suit, was another sufficient reason, as was held in Porter v. Cain, McM. Eq., 84.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.