Twitty v. Houser

7 S.C. 153 | S.C. | 1876

The opinion of the Court was delivered by

Moses, C. J.

The Court, in determining the several exceptions to the judgment of the Circuit Judge, will first dispose of those which are included in the appeal on the part of the creditors, who have come in under the petition of the plaintiffs, with the purpose of establishing demands against the intestate, John A. Keitt.

In regard to so much of their appeal as resists the right of the administrator to protect himself in the loss of the proceeds of the judgment against E. H. Rodgers & Co., by the failure of the bank in which they were deposited, we entertain no doubt. It does not appear that at the reference any notice was brought to the counsel of the administrator that the amount had been included in the account against him. He would have been at liberty, therefore, in the absence of such knowledge, to resist the charge on any sufficient ground, through an exception to the decree of the Probate Judge. The view which would confine the Circuit Court on an appeal from the Court of Probate to a mere determination of the points made by the notice would so embarrass its mode of procedure as seriously to affect the end proposed by its jurisdiction in matters of appeal from the orders, sentence or decree of a Probate Court.

The Circuit Court, by the sixty-second Section of the Code, is to “ proceed to the trial and determination of the question according to the rules of law.” If upon the hearing it should appear that either party to any particular issue involved in the judgment would be prejudiced without the hearing of further evidence, or that a surprise would operate to the injury of either, as the Court is without authority to'hear the case anew by the examination of further testimony, the ends of justice would be defeated if it had no power to remit it for additional evidence on all the issues or any designated part. Why may not the Court remand the case for a new hearing? and if it can so order, why may it not limit the further inquiry to a single issue? The order of May 30, 1874, does not seem to be open to the objection made.

It is further contended that, assuming the right’of the Judge to grant leave for the examination by the Probate Judge on the issue made by the defendants in regard to the fund referred to, there was error in his not holding the administrator liable for the loss of it by the failure of the bank in which it was deposited. In considering the point now under review, it must be remembered that, when collected, the proceeds of the judgment were necessarily to remain in the hands of the administrator until it was ascertained by the proceedings pending in the Probate Court at the time they were received how they were to be appropriated. In the view we take of the liability of the administrator for the loss of this sum, it may be considered as if paid directly into his hands by the defendants in the judgment, and by the administrator deposited in the Orange-burg branch of the Citizens’ Savings Bank of South Carolina. To treat the judgment as an investment, and to charge the administrator with a breach of duty in collecting it, is complicating the already very embarrassing subject of trusts with a new element for which no precedent or authority can be found. The conversion of a debt into a judgment is not for the purpose of investment, either as a temporary or permanent fund, for the accrual of interest. So far from this, it is the usual mode of enforcing the payment of the debt on which it is founded.- The purpose is not to place the debt in the shape of a judgment, so as to remain as an investment, but that by so changing its form it may be forthwith collected, and thus be the means of obtaining money which may be appropriated to the uses of its owner, according to his own interest or caprice. The proper inquiry is, was the act of the administrator .under the circumstances induced by that reasonable care with which prudent men, looking to their benefit, usually conduct their own business? The proceedings which were to determine the application of the money held by the administrators were still pending in Court. The deposit was made in a bank paying interest, and the only institution of the kind in the County where the letters of administration had been granted. At the time of the deposit it was in such good standing as to commend itself generally to the community, which is shown by the fact that the merchants, lawyers, officers of the Court and persons resident in and about the town, including several of the County Treasurers, made it the place for the deposit of their money. Even after the alarm of the public as to the condition of the bank, its officers submitted to its patrons extracts from a report, by gentlemen in various parts of the State, in the following language: “After an examination of the affairs of the Citizens’ Savings Bank of South Carolina, made at the solicitation of the managers of the institution, we are enabled to answer its depositors and the public that we fully recognize its claims to their continued confidence.” To make the administrator liable for the loss which followed from no fault on his part, would inflict upon him a punishment for not foreseeing what others having better opportunity failed to perceive in time to save them from a consequent loss. The views which we have taken of this part of the case are reflected from the principles announced in Fitzsimons vs. Fitzsimons, 1 S. C., 400.

So much of the judgment of the Circuit Court as holds that the sureties on the official bond of the administrator are not responsible for the amount of his note to the intestate is clearly erroneous. We have, during the present term, in the case of Jacobs, administrator, vs. Woodside & Goldsmith, decided the very point raised in this exception,.and it is only necessary to refer to it as authority for the same conclusion which we reach here.

It is next in order to consider so much of the appeal on the part of some of the defendants and the two plaintiffs as charges error in the Circuit Court in holding and adjudging the joint and several note of the intestate and Jacob G. Keitt to E. H. Rodgers & Co. to be the sealed note of the intestate, and therefore to rank as a specialty debt in the administration of the assets of his estate.

If the evidence of Jacob G. Keitt is not obnoxious to Section 415 of the Code, it is conclusive proof of the adoption by the intestate of the seal affixed to the name of the said Jacob G. Keitt as his own. Several may adopt the seal of one without so expressing on the face of the papers. — Bull vs. Domsterville, 4 T. R., 343. It is the intention which gives effect to the act, and this may be proved by the manner of the signature, or parol evidence, connecting what may appear on the instrument with the declaration of the party, so as to make his intention manifest. The Section of the Code referred to does not exclude the testimony of Jacob G. Keitt, a several co-signer of the note, because he has “ no legal or equitable interest which may be affected by the event of the.action or proceeding.” For although it is against a party “ defending the action as administrator,” and the testimony is “in regard to a transaction or communication between the witness and a person at the time of the examination deceased,” yet the fact that the proposed witness has no interest to be affected by the issue in the ease withdraws him from the operation of the provision in the said Section, which, if he had such an interest, would include him. He not only admits in his testimony that he is the principal in the note, but he proves that the consideration for which it was given enured entirely to his own benefit, and that his co-maker was only a surety. The establishment of the note as a valid claim by specialty against the estate of the intestate in no way increases or diminishes the liability of the principal, who is a competent witness under the said Section of the Code, which only excludes a witness “having a legal or equitable interest which may be affected by the event of the action.”

The question raised by the appeal of the plaintiffs as “to what point of time do the words of survivorship in the codicil to the will refer,” we think has been fully adjudicated by the decrees set out in the brief. Two of them were made by Chancellor Dun-kin, and the third was by Chancellor Caldwell. The parties interested were all before the Court, and appear to have acquiesced in its judgment by not taking an appeal. Nearly twenty years have elapsed since they were pronounced, and their effect is sought to be disturbed, not by any one having an interest in the estate of the testator, but by subsequent creditors of one of the grand-children, who took as devisees and legatees under both the will and the codicil. The decrees are conclusive, because on the same points, by a competent Court, and preclude any new inquiry as to their effect on the parties whose interests were determined by them.

We agree with the Circuit Judge that the estate of John A. Keitt is not responsible to the surviving children of Andrew Houser for moneys paid to Jacob G. Keitt as administrator of Frances Y. Keitt. Her estate is not in process of settlement before the Court, nor is her administrator a party to the present proceeding. Before any such liability could rest upon the estate of John A. Keitt, it must be made to appear that the portion received by him through the estate of the said Frances G. did not vest absolutely in him, but belonged to the children of the said Andrew Houser, in right of their survivorship under his will.

We do not see how Peter M. Houser, who is the administrator of John Keitt, can claim as a creditor the interest which he, the said John A., was entitled under the will of Andrew Houser, upon mere proof of certain payments made to his guardian on such account, without any evidence of a settlement between the said guardian and his ward, or of some disposition of them to his use. So far as it is disclosed by the brief, there was no evidence of any payments to the said John A. Keitt on such account. David Houser, the other brother, claiming a like interest, could only assert it by a proceeding against the said Peter M. Houser, administrator of the said John A. Keitt. Yet here we find the administrator and his brothers entitled, as they say, as survivors, to the interest which John A. Keitt took in the estate of their father, claiming a right to be paid out of assets in the hands of the administrator on the mere ground that the said David Houser, the executor of the father, made payments on such account to the guardian of the said intes* tate. Before the other creditors of John A. Keitt should be compelled to submit to an abatement of their debts, by reason of this demand, his administrator must first seek an account from the said guardians of the moneys so received from the estate of Andrew Houser for and on behalf of his ward, the said John A. Keitt.

It is ordered that the ease be remanded to the Probate Court for the County of Orangeburg for such orders and proceedings as may-conform its judgment to the conclusions herein expressed.

Wright, A. J., and Willard, A. J.,' concurred.