38 S.C. 158 | S.C. | 1893
Lead Opinion
The opinion of the court was delivered by
These cases were brought for a settlement of the estate of Hewlett Sullivan, deceased, and were heard together. The record is enormous, consisting of nearly three hundred pages of printed matter, with an addition of half as many of printed argument. The various matters involved are in some confusion, and in order to have a clear view of the points to be decided, it will be necessary to give a condensed outline of the principal facts.
Hewlett Sullivan was a bachelor, and lived to the great age of more than eighty years. Having energy and good business capacity, he accumulated a considerable fortune, which, as was supposed at the time of his death, amounted to more than a hundred thousand dollars. His nearest relations were four nephews, viz: Joseph P. Latimer and John H. Latimer, sons of a sister, and Charles M. Sullivan and John D. Sullivan, sons of a deceased brother, and these are the principal litigants over his property. On March 20, 1880, he executed his will, naming all four of his aforesaid nephews as executors. Becoming feeble with age and disease, in the winter of 1883, he went to live with his favorite nephew, Dr. Joseph P. Latimer, where he remained, with increasing infirmities, until he died on May 30, 1887. While he was living in the family of Dr. Latimer, on March 15, 1887, he made a codicil to his will, revoking the appointment of the Sullivan brothers as executors of his will, and leaving the Latimers as his sole executors. They immediately after his death proved the will, qualified as executors, and took possession of the entire estate. By his will, the testator gave devises and specific legacies to several other per
The appellants, Charles M. and John D. Sullivan, instituted these proceedings against the executors, charging mal-administration — that the executors were collecting the estate, but paying neither debts nor legacies — refusing to charge themselves with certain judgments, which the testator, at the time of his death, held against each of them; but, on the contrary, in addition to many free gifts made to them by the testator in his lifetime and the provisions of his will so liberal to them, they, the said executors, were now raising charges against his estate, for alleged services, medical attention, and nursing, during the latter years of his life, so enonnous as to threaten to swallow up a large part of the estate, praying for an account, injunction, receiver, &c.
Several unsuccessful efforts had been made to obtain an account and settlement; but in 1889, his honor, Judge Hudson, made an order appointing L. K. Clyde, Esq., as special master, with directions: first, to take the testimony and state the accounts of the executors to the date of the reference, with a view to ascertain how the executors were discharging their duties; and especially to take the testimony1- as to the indebtedness of each of the said executors to the said deceased, if any there be, &c. And second, “the said special master is charged to require the said executors, and each of them, to make proof, and by competent testimony to establish before him their respective claims against the said Hewlett Sullivan, the deceased testator;” and “by striking a balance, ascertain, and report to this court, how much, if any1, the deceased at the time of his death was indebted to each of the executors,” &c.
First. As to the individual claims of the executors. “The special master will not undertake to discuss the evidence in detail — it is too voluminous — but will content himself by saying, that he has most carefully and laboriously considered and analyzed the same, and finds as follows:
“I. That for many years of his life, and especially during the last ten or fifteen years preceding his death, valuable services were rendered to Hewlett Sullivan in the conduct and management of his business affairs by Dr. J. P. Latimer.
“II. That for and during said period, more or less frequently, Hewlett Sullivan received at his hands skillful and valuable medical treatment.
“III. That during the last years of his life he was boarded by said Dr. J. P. Latimer in his family, and during his spells of sickness was nursed and cared for by him and his family.
“IV. That during the last seven or eight years of the life of Hewlett Sullivan, like valuable services were rendered him in attending to and looking after his business by John H. Latimer.
“V. That these services were rendered by both Dr. J. P. Latimer and John H. Latimer at the request of Hewlett Sullivan, and with the mutual expectation and understanding that they were to be compensated therefor. In the judgment of the special master, these conclusions are clearly sustained by the evidence.
“The only two questions remaining are: (1) How were they to be compensated — by legacy, or were they to be paid as other creditors? And (2) if the claims are legal demands against the estate, what amounts have these parties shown themselves entitled to recover? * * * The special master is forced to the conclusion, that the mutual understanding was that these claims were not to be paid by legacy or devise, but were intended to be paid as the claims of other creditors. He sustains*164 the plea of the statute of limitations, and holds that the claims, prior to May 30, 1881 (six years), are barred, and the question of compensation under the will, executed in 1880, can not arise.
“What, then, is the value of their services respectively, as established by the proof?. Without attempting to discuss the evidence, the special master will content himself with merely stating the conclusions reached: First. That the services of Dr. J. P. Latimer rendered to Hewlett Sullivan, in attending to his business for the six years last preceding his death, are worth five hundred dollars per year for said period — $3,000. Second. That his services as physician to Hewlett Sullivan for said period of six years are worth fifteen hundred dollars per year — $9,000. Third. That the board and nursing Hewlett Sullivan by Dr. Latimer for the last four years of his life are worth five hundred dollars a year for each year of said service— $2,000. Fourth. That the services of John H. Latimer rendered to Hewlett Sullivan for and during the six years last preceding his death are worth three hundred and fifty dollars per year— $2,100.”
And he found as matters of law: “1st. That the claims of the executors are not paid or satisfied by benefits received under the will of the testator, by presumption or operation of law. 2d. That their claims'are subsisting legal demands against the estate of Hewlett Sullivan. 3d. That the portions of their claims which arose or were contracted prior to May 30th, 1881, are barred by the statute of limitations.
As to the accounting of Fxecutors. — The special master proceeds: “It is contended that the executors should account for certain j udgments held by their testator against them, as monies in their hands. It appears from the evidence that Hewlett Sullivan bought a judgment held by one Greer against Dr. Latimer, and gave it to him; that there was no written assignment or transfer of the judgment, but that he placed the judgment, or something that represented or was intended to represent it, in the hands of Dr. Latimer, stating that he gave the judgment to him. The evidence also shows that he had two judgments against John H. Latimer and others; that he instructed Mr.
To this report of the special master the appellants (plaintiffs) filed forty-eight exceptions. Upon these exceptions the cause was heard by his honor, Judge Witherspoon, who said: “It seems to me that the evidence is sufficient to sustain the special master in his findings of matter of fact, and I concur with the special master in his conclusions as matter of law.” He overruled all the exceptions, and made the report the judgment of the court. From this decree the plaintiffs appeal to this court upon twenty-two exceptions, which are all printed in the record.
These findings may seem large, but they were made by the tribunal appointed for that purpose; they were upon simple questions of fact, and the Circuit Judge concurred in them; so that, according to the well-known rule of this court, they will not be disturbed, unless they are without any evidence to sustain them or are against the manifest weight of the evidence. A mere glance through the volume of testimony will disclose the fact that it would be quite impossible for this court to review it, with any hope of arriving at a different result. The claims as above stated, therefore, must be accepted as established. See Callum v. Rice, 35 S. C., 551.
The testator, after an active life, was becoming infirm, and, probably tired of living alone, went to live with the family of Dr. Latimer, his favorite nephew, for whom he had done more, was doing, and continued to do more, than for any other of his relatives. Upon the occasion of his entering the family, we hear nothing of an express contract for board or nursing. Doubtless, the family gave to him the welcome due to a near relative and valued friend, to whom, as the rich man of the family, they were under many obligations. It is not to be ■imagined that, at that time, any of the parties thought, for a moment of charging him for board and nursing, as if he were a mere stranger. There is, at all events, no proof of such contract, that was not the understanding of the parties — certainly ,such was not the understanding of Mr. Sullivan himself, who, it would seem from his conduct, lived and died in the belief that the board now set up as a debt against his estate was accorded to him while living in the spirit of the most unselfish generosity. His whole subsequent course of life was only consistent with this view. He had money at hand, but never offered to pay anything on a contract for board. As was natural, he felt the moral obligation to requite such generosity, and to pay kindness with kindness, and accordingly in 1886, while he was living in the family, he put himself to some trouble to purchase the Greer judgment against Dr. Latimer for something over $1,000, with interest, and made Dr. Lati
The judgment of this court is, that thejudgment of the Circuit Court be modified, as herein indicated, and that the case be. remanded to the Circuit Court, in order that the account of the executors may be formally^ stated, and for such other proceedings as may be necessary and proper to carry out the conclusions herein announced.
Concurrence Opinion
I concur in the opinion announced by Mr. Justice McGowan. The force and effect given to the concurrent findings of fact by the master and Circuit Judge, under the decisions of our courts, seem to demand that such findings of fact shall control this court in relation to the same, except in those cases where there is no testimony to sustain them, or such findings are contrary to the manifest weight of the testimony. It is quite true that the medical bills allowed in this case seem to be unusually large. The last days of Hewlett Sullivan were only made peaceful by these nephews and their families. He had neither wife nor child. As shown by the records of the courts since the war of 1865, he had been almost continuously in litigation, some of which was with near relations bearing his own name. Quite old, buffeted by many reverses, he seems to have turned to Dr. Latimer and his family for care and attention during the last years of his life. So deep a hold did Dr. Latimer as a physician have upon the confidence of Hewlett Sullivan, that the latter could not tolerate his absence from him. To answer such demands, the physician in question had to abandon all other calls. These unusual, long protracted, and extraordinary demands upon Dr. Latimer seem to have controlled the master and the Circuit Judge. I ■ cannot, from these stand-points, say that the finding is against the weight of testimony, or without any testimony to support it.
I think, however, care should be taken to emphasize the disapproval by this court of any power in an attorney at law to interfere with a judgment, obtained, by him for a client during his lifetime, after the client’s death, such, for instance, as marking a judgment satisfied, when no money is paid or provided to be paid in full payment of such judgment, even though in the lifetime of the client such direction may have been given by the client to the attorney. It is the settled law of this' State, that death revokes a power of attorney; and, also, that an attorney is restricted to the prosecution of the action and the receipt of the amount of the judgment of his client. Mayor v. Blease, 4 S. C., 13, and authorities there cited. But as I do not understand the judgment of the other members of this court to be based upon this phase of the question (I mean, the action
1 concur, as before said, in the conclusions announced by Mr. Justice McGowan.
Concurrence Opinion
While I concur in all the other-conclusions reached by Mr. Justice McGowan, I cannot agree with him in affirming so much of the judgment below as allowed to Dr. Joseph P. Latimer his claim for medical services rendered the testator. It does not seem to me that there was any such evidence to establish this claim as the law requires. Ordinarily a claim of this kind is established by the introduction of the books of the physician, showing the specific charges made at the time the services were rendered (Lance v. McKenzie, 2 Bail., 449), though I presume that where there is a special contract that the physician shall be paid so much per year, proof of such contract would authorize a recovery. In this case there was no evidence of any such contract, and hence the claim could properly be proved by the book entries of the physician, which must be specific and not general. Hughes v. Hampton, 2 Tr. Con. R., 745, where the charge which was rejected as too general was: “13 dollars for medicine and attendance on one of the general’s daughters in curing the whooping-cough.” This case is cited with approval in Lance v. McKenzie, supra, and as the court there says, “has been invariably acted upon ever since.” The slightest examination of the medical account presented in this case will show that much the larger part of the charges in the account originally presented are in much more objectionable shape than the charge rejected in the case cited. I do not mean to say that a charge for medical services can only be proved by book entries, for there may be cases in which the specific services charged for may be proved by other evidence — as, for example, where a witness can testify that he knows that the specific services charged for were rendered . But in this case there was no such evidence offered, and none could well be, except that of Dr. Latimer himself, and that would have been incompetent, under section 400 of the Code.
Judgment modified.