Ex parte Simmons

• Decision Date: 08 July 1904
• Parties: Ex parte SIMMONS.
• Court: South Carolina Supreme Court

48 S.E. 279

69 S.C. 385

Ex parte SIMMONS.

Supreme Court of South Carolina

July 8, 1904

Appeal from Common Pleas Circuit Court of Lexington County; Gary Judge.

Action by Rosanna Connor and others against Chas. W. Connor and others for partition of the estate of John W. Connor deceased. C. B. Simmons presented a claim therefor against the estate for services. From an order directing payment plaintiffs and defendants in partition suit appeal. Reversed.

Woods J., dissenting.

T. C. Sturkie and C. M. Efird, for appellants. Andrew Crawford, for respondents.

GARY A. J.

John W. Connor died intestate, seised and possessed of certain lands, and leaving as his heirs at law his wife, Mrs. Rosanna Connor, and three sons, James W. Connor, Charles W. Connor, and H. Wilmot Connor; the latter being a minor. Charles W. Connor was appointed administrator of his estate. Some time after the death of the said John W. Connor, his heirs at law joined with the defendants Rorer and Stone in the execution of a contract for the sale of the timber on said lands. After its execution it was deemed necessary to have the sale confirmed by the court on account of the minority of H. Wilmot Connor. Accordingly an action was commenced for that purpose and for partition of the lands. During the progress of the proceeding it was ascertained that the administrator had not advertised for creditors, whereupon an order was taken to that effect. Under this advertisement C. B. Simmons presented a claim against said estate for $550 as commissions for making the sale to Rorer and Stone. The referee reported adversely upon this claim. Upon exceptions to said report the circuit court set it aside, and ordered payment of the claim out of funds belonging to the estate of John W. Connor.

Even if this court should concur with his honor the circuit judge in his finding that there was an agreement for commissions between C. B. Simmons, the administrator, and the other heirs at law, it was not a debt against the estate of the intestate, and it was error to order its payment out of funds belonging to said estate. The following authorities show that a debt contracted under such circumstances is against the administrator in his individual capacity, and not against the estate of which he is the representative. McBeth v Smith, 3 Brev. 511; Ross v. Sutton, 1 Bailey, 126, 19 Am. Dec. 660; O'Neall v. Abney, 2 Bailey, 317; Nehbe v. Price, 2 Nott & McC. 328; Kinsler v. Holmes, 2 S. C. 483; Neal v. Bleckley, 51 S.C. 506, 29 S.E. 249. Whatever rights C. B. Simmons has in the premises are against the parties with whom he contracted in their individual capacity, but he has no valid claim against the estate of...