29 S.C. 332 | S.C. | 1888
The opinion of the court was delivered by
John H. Williams, having duly made and executed his last will and testament, departed this life on the 2nd of June, 1876. By his will, after some pecuniary legacies and a specific devise to his grandchildren, he gave the larger portion of his estate to his two sons, the plaintiff and the defendant's intestate. These two sons, Robert G. Williams and James W. Williams, were appointed executors and they duly qualified as such, and in August, 1876, made and returned into the proper office an inventory and appraisement of the personal estate of their testator, under which the principal questions in this case arise, and which will be more partícula ily referred to hereinafter.
On the 9th of August, 1883, “after the greater portion of the testator’s estate had been disposed of, according to the direction of the will,” James W. Williams died intestate, and the defendant, George S. Mower, administered upon his personal estate, and on the 3rd of July, 1881, this proceeding was commenced in the Court of Probate, and carried thence by appeal to the Court of Common Pleas. The object of the proceeding was to obtain from the defendant an account of the proceedings of his intestate as executor of John H. Williams, upon the allegation that he was the sole managing executor, and that a considerable portion of the personal estate of the testator remained in his hands, at the time of his death, unadministered, to which the plaintiff alleged that he was entitled both as surviving executor and as legatee, and that for the purpose of ascertaining the amount of such unadministered assets, the account demanded was necessary.
The defendant by his answer denied that his intestate assumed
It seems that the first item on the inventory and appraisement, as returned by the executors, was “cash on hand, United States bonds, railroad stocks, $8,000,” and the main questions in the case were: 1st. How much of that sum was received by each executor respectively. 2nd. Whether a certain sum of $5,000, alleged to have been received by the intestate, James W. Williams, was included in the $8,000 mentioned in the appraisement. 3rd. Whether another sum of $1,417, received by James W. Williams from George W. Williams & Co., was a part of the $8,000 mentioned in the inventory. 4th. Whether the plaintiff, as an individual, was indebted to his deceased brother, James W. Williams. By order of the Circuit Court issues were framed, embracing these four questions, and submitted to a jury who found as follows: 1st. That the said sum of $1,417 was a part of the $8,000 mentioned in the inventory. 2nd. That James W. Williams received of the said $8,000, seven thousand dollars in cash, and the remaining one thousand dollars'w'as received by Robert G. Williams, “in railroad stock and United States bonds.” 3rd. That James W. Williams did receive the sum of $5,000, not included in the inventory, with which he has not charged himself in his returns as executor. 4th. That the plaintiff is not, as an individual, indebted to the estate of defendant’s intestate.
The Circuit Judge concurred in the findings of the jury, and rendered judgment accordingly, and he also adjudged that, “In
The plaintiff’s first ground of appeal assails the finding in inference to the $1,417 being embraced in the inventory. This, as it seems to us, is a question of fact, and in the face of the finding of the jury, concurred in by the Circuit Judge, we can see no ground for disturbing the judgment below.
The plaintiff’s second ground of appeal imputes error to the Circuit Judge in directing that in the settlement in the Probate Court, the defendant shall not be required to turn over to the plaintiff the share of his intestate in the estate of the testator, but that it shall be sufficient for him to receipt for the same. The manifest object of this provision of the Circuit decree was to render unnecessary the useless ceremony of paying over with one hand, and immediately receiving the same sum with the other hand. It seems to us that the evils suggested in the argument of plaintiff’s counsel cannot arise under the terms of the decree above copied. Before the share of the intestate can be ascertained, all the proper expenses of administering the estate of the testator would first have to be provided for. So, too, if there are any outstanding debts legally due by the estate of the testator (although it is distinctly stated in the “Case” that there are none), these also would have to be provided for before the shares of either party could be ascertained; and it will be observed that the decree does not direct, as seems to be assumed in the argument, that one-half of the amount found to be due by the estate of defendant’s. intestate to the estate of the testator shall be retained by the defendant, but that the share of defendant’s intestate in the estate of the testator shall be retained by defendant.
We come then to the defendant’s grounds of appeal. The first and second grounds present the question as to the admissibility of the declarations of James W. Williams, made to witnesses verbally, and by entries in his memorandum, to rebut and explain other declarations made by him and introduced by plaintiff. The general rule upon this subject is, that while it is competent to introduce declarations of a party against his interest, it is not competent to introduce his declarations in his own favor, unless they were made in, and constituted a part of, the conversation brought out by the other side; and this we understand to have been the ruling of the Circuit Judge, in which we think there was no error. Counsel for the defence has cited the case of the Administrators of Darby v. Rice (2 Nott & McC., 596), to sustain these grounds, but we do not think that case is in point. There the contest was as to whether the apparent balance on an account had been paid. A witness who had received some money from the deceased, Darby, immediately took the same money in bills to the store of the defendant to pay an account which he owed him, and as soon as defendant saw the bills he remarked to the witness, “You got that money from Darby,” and this, with other circumstances, was relied upon to show payment. The questiou was, whether the remark of defendant above quoted was competent evidence, and it was held that it was, for the purpose of proving the fact that defendant immediately recognized the bills, as that fact was not susceptible of proof in any other way.
The third, fourth, twelfth, and thirteenth grounds present substantially the question whether the inventory, signed and sworn to by the plaintiff, was so conclusive as to estop him from showing any errors or mistakes therein. Upon this question we are cited to no authority, nor are we aware of any which will sustain the broad proposition that an inventory of his testator’s estate, returned by an executor, is so absolutely -conclusive as to estop him from showing unintentional errors or mistakes therein. It is true, the law requires that an executor shall make a full and
The sixth ground imputes error to the Circuit Judge in finding that there had been no settlement and division of the estate of the testator between the two executors, and that the plaintiff had received no part of the eight thousand dollars mentioned in the inventory, except the one thousand dollars of railroad stock, leaving the remaining seven thousand dollars to be accounted for by the estate of James W. Williams. This presents simply a question of fact, and under the well settled rule, we see no reason for interfering with the conclusion reached by the Circuit Judge.
So, too, the eighth ground, which challenges the correctness of the finding below as to the individual indebtedness of the plaintiff to the defendant’s intestate, raises only a question of fact. We agree with the Circuit Judge that there was no legal evidence of any such indebtedness.
The 9th and 10th grounds allege error, in not excluding the testimony of Robert G. Williams as to. communications and'transactions between him and the intestate, under section 400 of the Code. We do not understand that the plaintiff was allowed to testify as to any transactions or communications with defendant’s intestate except in reply, after it had been brought out on the cross-examination that certain payments had been made by the intestate to the plaintiff, when he was asked if any other payments had been made to him, and especially whether he had ever received any part of the five thousand dollars alleged to have been received by the intestate over and above the inventory, and
These two brothers, the plaintiff and defendant’s intestate, were co-executors of their father’s will, and both equally charged with executing its terms, and, under the section of the Code above referred to, it was not competent for the survivor to testify to anything that, by word or act, passed between himself and his deceased brother. It seems to us, therefore, 'that unless the way was opened by a previous cross examination, it was not competent for the plaintiff to testify as to what portion of the assets he had or had not received from the deceased co-executor, or as to what passed when they went together to their attorney to prepare the inventory of the estate. The Circuit Judge seems to have misconceived the scope and effect of the decision in Standridge v. Powell, 11 S. C., 549. In that case the action was upon a note under seal by the assignee, and it was held that the maker of the note was competent to prove the loss of a receipt alleged to have been given him by the deceased assignor, upon the ground that the mere loss of the paper could not be regarded as either a transaction or communication between the witness and the deceased assignor, but it was at the same time held that the witness was not competent to prove the contents of the alleged receipt, as that was such a transaction. Counsel for the defence have referred us to certain portions of the testimony taken by the judge of probate, where the plaintiff was allowed to testify as to transactions and communications between himself and the intestate; but this testimony was taken subject to exceptions, and as it was not used in the trial before the Circuit Judge, where the trial was de novo, he did not and could not have made any ruling thereon.
The fifth, seventh, and fourteenth grounds of appeal on the part of the defendant present what we regard as the serious question in this case. If, when the inventory was made and returned by these two executors, the plaintiff either wilfully or intentionally suppressed and omitted therefrom the five thousand dollars alleged to be in the hands of his co-executor as a part of the assets of his testator’s estate, or if he silently acquiesced in such suppression or omission, then, it seems to us, that upon the highest considerations of public policy and morality, the law will not permit him now, for his own advantage, to supply such omission. If this was done by these executors, it was a fraud upon the rights and interests of those whose interests were committed to their charge, and neither one of them can make such fraud the basis of any claim against the other, but the law will leave them as it found them. When they qualified as executors, it became their duty — their sworn duty — to make a full and complete inventory of the personal estate of their testator, and if they wilfully or even intentionally omitted from such inventory any portion of the assets of the testator, they violated their oath, and neither one of them can be permitted to claim the interposition of a court of justice to relieve them from the position in which they have voluntarily placed themselves. It is true that this may practically enure to the benefit of one who has also participated in the fraud, but this is the result in evei’y case where one seeks relief from a fraud in which he has himself participated. The law affords relief to neither, but simply refuses its aid to both.
This language leaves us in some doubt whether the Circuit Judge based his conclusion that it -was competent for the plaintiff to show that the five thousand dollars should be added to' the inventory, because it was omitted through forgetfulness, or because these two executors, being the only persons interested in the estate, the omission, known to them both, could make no difference. If the former, there is not the slightest evidence to show that the omission was through forgetfulness, and, on the contrary, there is testimony tending to show that the omission was intentional, and for the purpose of enabling the intestate to make a more favorable settlement with the legatees for whom he was trustee ; and this leaves no room for the assumption, “in the absence of proof,” that the omission was the result of temporary forgetfulness, to say nothing of the fact that it is difficult to conceive how so large a sum should have been overlooked. But if, on the other hand, the judge’s conclusion is to be regarded as based upon the fact that as these two executors were the only persons interested in the estate, the omission made no difference, then we cannot accept either the reasoning or conclusion of the Circuit Judge. The real question is, why was this large sum omitted at the time
It may be possible that in this particular case no harm was intended and that none has resulted from the omission, but the law must proceed upon general principles, which are alike applicable to every similar case, and we think the safest and best principle to lay dowm is that where an executor wilfully or intentionally omits from, the inventory of his testator’s estate any portion of the assets of such estate, he cannot afterwards, for his own advantage, supply such omission by falsifying his sworn return. Whether this has been done in this case is the question which must be referred -to the Circuit Court for trial.
The judgment of this court is, that the judgment of the Circuit Court be reversed, in so far as it holds the estate of defendant’s intestate liable for the five thousand dollars in addition to the inventory, and that the question of such liability be referred back to the Circuit Court for trial upon the principles herein announced, and that in all other respects the judgment of the Circuit Court be affirmed.