Bagwell v. Hinton

• Decision Date: 27 November 1944
• Docket Number: 15689.
• Citation: 32 S.E.2d 147,205 S.C. 377
• Parties: BAGWELL v. HINTON et al.
• Court: South Carolina Supreme Court

32 S.E.2d 147

205 S.C. 377

BAGWELL v. HINTON et al.

No. 15689.

Supreme Court of South Carolina

November 27, 1944

Appeal from Common Pleas Court of Pickens County; E. C. Dennis, Judge.

Suit by Earle J Bagwell against O. T. Hinton, as administrator of the estate of W. L. Bagwell, deceased, and others, for an accounting. From a decree for defendants, plaintiff appeals.

Decree modified in accordance with opinion and cause remanded with directions.

The order of Judge Dennis follows:

The above entitled cause was heard by me at Greenville at the December Term, 1943.

Although other actions and proceedings have been brought, which will be subsequently adverted to, the hearing before me was upon the following complaints:

(A) Dated November 11, 1940, Earle Bagwell, Plaintiff against Hinton, Administrator of W. L. Bagwell, and Wyatt Administrator and Trustee of Nannie Bagwell; the complaint prays for an accounting by the estate of W. L. Bagwell and for judgment for the amount due against that estate only. No relief was claimed against Nannie Bagwell.

(B) Dated March 29, 1941, Earle Bagwell Plaintiff, against all of the defendants named in the above title. The complaint asks that this action and the one commenced November, 1940, be consolidated and heard together and asks further for (1) an accounting by the estate of Mrs. Nancy Bagwell, Guardian; (2) that the two actions be consolidated "and that they be held in abeyance until the final decree of the Court in the action brought to set aside the alleged order of discharge (of Nancy Bagwell) in the Probate Court"; (3) that final judgment be given in his favor for the amounts found to be due him in connection with both guardianships. In this complaint it was expressly stated that no relief was sought against either principal or surety on the original guardianship bond.

(C) Dated August 18, 1943. Served after September 11, 1943, after order allowing it as an amendment to (A) was signed. The relief asked in this last complaint is (1) that an accounting of the guardianship of W. L. Bagwell and judgment against that estate "and judgment against the mother's estate on her obligation as surety;" (2) that the assets of the father's estate be applied to the payment of the amount due as herein determined and the amount of the balance due be adjusted between the parties to this action and proper distribution of the proceeds of sale of both estates be decreed herein.

It will be observed that the first case asked primarily for an acounting of the father's estate, the second for an accounting of the mother's estate; in the third case an effort is made for the first time to establish the liability of either, based upon the execution of the original bond signed by W. L. Bagwell, as guardian, and by his wife, Nancy Bagwell, as surety.

While the above are the three complaints which raise the issues heard by me, litigation with reference to the estate of Earle J. Bagwell, all of which was initiated by him, has been pending in the courts of Pickens County since the latter part of 1938. A very clear statement of the preceding actions will be found in the order signed by Judge Oxner in the case in which the parties are the same as in this case, his order being dated November 11, 1942, in which action he dismissed the complaint brought to set aside the order of the Probate Court, which discharged Mrs. Bagwell, as guardian of the estate of Earle Bagwell. A clear history of the litigation above referred to is given in that order and for that reason it is unnecessary to repeat it here.

In order to understand the issues for determination in this action it is necessary that a full statement of the facts be given and those facts, as I find them to be, are briefly as follows:

W. S. Murphy, a resident of Pickens County, died on June 17, 1922. He left surviving him one adopted child, Nancy Bagwell, who was the wife of W. L. Bagwell. Nancy and W. L. Bagwell had eight children. W. S. Murphy left a considerable estate in Pickens and Anderson Counties, and also a considerable personal estate, as is shown by the appraisal in that estate and by the first return of executors therein, which return was filed on December 20, 1922. Among the personal assets, as shown by the return of the executors, there was on deposit in Easley Loan & Trust Company $21,366.21; in the Commercial Bank $2,451.82; and in Pickens Bank $1,456.19; the total amount on deposit at the time of his death and which was on deposit at the time his executors were appointed aggregated the sum of $25,274.22. These deposits will be considered more in detail in this order.

W. S. Murphy left a will by which he directed that his estate be divided between his adopted child, Nancy Bagwell, and the eight children of Nancy and W. L. Bagwell. W. L. Bagwell and T. T. McMahan were named as executors of the will, duly qualified in the Probate Court on June 26, 1922, and entered into the discharge of their duties. Three of the children were minors and on December 20, 1922, the father, W. L. Bagwell, was appointed guardian of the three children by the Probate Court of Pickens County, qualified on that date by the execution of a bond in the sum of $7,000, with his wife, Nancy Bagwell, as surety thereon. This is the bond on which this suit is brought.

The plaintiff, Earle Bagwell, was the youngest of these three children. He contends that he was born on April 3, 1914, and attained his majority on April 3, 1935; the defendants contend the plaintiff is one year older than that. On this question there is a decided conflict of testimony and the Court does not consider it necessary to determine that question.

The record of the Probate Court shows that W. L. Bagwell regularly made annual returns in the administration of the three guardianship estates up to the time of his death. When the two older children attained their majority he duly accounted to them and paid over to each child the amount which it was entitled to receive. In the administration of these estates the guardian did not disturb or transfer the cash on deposit in the Easley Loan & Trust Company but allowed such funds to remain and bear interest. In 1929, when plaintiff was 14 or 15 years old, the Easley Loan & Trust Company failed and a considerable sum of money, guardianship funds of Earle Bagwell, was lost, with the exception of the small dividends that were subsequently paid thereon. Plaintiff contends that he first learned of said money being deposited and lost in said bank in 1932 or '33.

The guardian, W. L. Bagwell, died intestate in November, 1933, at which time plaintiff was 19 or 20 years old. The last return was filed by W. L. Bagwell, as guardian, on January 29, 1932, showing a balance on hand of $2,106.96. No administration was had to the estate of W. L. Bagwell until December, 1939, when O. T. Hinton was, at the instance of plaintiff, appointed administrator of his estate. After the death of W. L. Bagwell plaintiff's mother, Nancy Bagwell, was appointed guardian of his estate, upon a petition signed by him, by the Probate Court of Pickens County on December 16, 1933. She duly gave bond with the U. S. F. & G. Company as surety. She was discharged as such guardian by the Probate Court for Pickens County on April 30, 1934, having served a period of little more than four months, during which time she was not in good health and under a severe strain.

Nancy Bagwell died intestate on August 28, 1938, and Julien D. Wyatt was appointed administrator of her estate in September, 1938. Plaintiff testified that, although he knew of this money being lost in the bank, he never mentioned it to his father during his lifetime nor did he mention it to his mother after the death of his father, for the reason that he did not wish to disturb them. He lived with his mother during all the time until 1937, about a year before she died. Although Nancy Bagwell was appointed guardian for plaintiff and although the petition for her appointment was signed by him he testified that he knew nothing about his mother acting as guardian.

W. L. Bagwell as guardian borrowed $1,600 from the estate of his ward, giving a real estate mortgage as security. Later the guardian conveyed this tract to plaintiff in full satisfaction of the debt. Plaintiff ratified and confirmed this transaction by a sale and conveyance of the property after he reached his majority. There was a partition proceeding had in 1938 wherein the remaining lands not theretofore divided among the children were partitioned among the heirs at law and distributees of W. L. Bagwell and Nancy Bagwell.

W. L. Bagwell, as guardian, made annual returns to the Probate Court up to the time of his death. Nancy Bagwell was, upon plaintiff's petition, appointed guardian of that estate and was duly discharged by the Probate Court for Pickens County on April 30, 1934. Her return filed on that date shows the balance received from the estate of W. L. Bagwell, guardian, being money on deposit in the Easley Loan & Trust Company and Commercial Bank, aggregating $2,154.01.

On July 13, 1940, an action was instituted in the Court of Common Pleas for Pickens County seeking to set aside and have declared "void or voidable" the settlement of Nancy Bagwell had in the Probate Court. The case was heard by Judge Oxner on testimony taken before a Special Referee and on November 11, 1942, Judge Oxner signed an order dismissing said action and from that order no appeal was ever taken.

In the present case defendants unite in an answer in which the following defenses are pleaded:

(A) General denial; (B) Res judicata and estoppel; (C) Statute of limitations and laches.

Plaintiff's action herein is based principally upon the allegation that W. L. Bagwell deposited funds of plaintiff,...