Bell v. Mackey

• Decision Date: 12 July 1939
• Docket Number: 14915.
• Citation: 3 S.E.2d 816,191 S.C. 105
• Parties: BELL, Probate Judge, v. MACKEY et al.
• Court: South Carolina Supreme Court

3 S.E.2d 816

191 S.C. 105

BELL, Probate Judge, v. MACKEY et al.

No. 14915.

Supreme Court of South Carolina

July 12, 1939

The order of Judge Featherstone, requested to be reported follows:

This action was commenced on or about the 5th day of February 1937, to recover against Lou M. Mackey, as administratrix and LeConte Mackey, as administrator of the estate of Robert B Mackey, deceased, and the Fidelity and Deposit Company of Maryland, as Surety on the administration bond of Robert B. Mackey, as administrator of the estate of Luther C. Lazenby, deceased, the sum of Eleven Thousand Eight Hundred and Thirty-Eight and 48/100 ($11,838.48) Dollars, which embraces a balance of Eighteen Hundred and Eighteen and 90/100 ($1,818.90) Dollars in the hands of Robert B. Mackey, as such administrator, alleged to have been not accounted for; Thirty-Eight Hundred and Seventy-One and 72/100 ($3,871.72) Dollars commissions alleged to have been improperly claimed by the said Robert B Mackey, as administrator, and accrued interest amounting to Sixty-One Hundred and Forty-Seven and 86/100 ($6,147.86) Dollars.

The defendant administratrix and the defendant administrator and the defendant, Fidelity and Deposit Company of Maryland, duly filed their answers herein admitting and denying a number of allegations of the complaint and setting up several special defenses as to the merits and other angles of the case. The cause was referred to H. Hines, as Special Referee, to take the testimony therein and to report the same to the Court. The issues in the cause were heard by the Court on the testimony so reported, the several exhibits and documentary evidence and the pleadings.

It is the Court's purpose and endeavor to pass upon and decide all of the issues in the cause, regardless as to whether the decisions of some of the issues will preclude the necessity for the decisions of other issues.

The following general facts are found and established by the Court as applicable practically to all of the issues involved, to wit:

"(a) That Robert B. Mackey qualified as Administrator of L. C. Lazenby in the Probate Court for Lancaster County on the 11th of October, 1917, approximately nineteen years and eight months prior to the commencement of this action. The Letters of Administration being issued by Judge Stewman, the then Probate Judge for Lancaster County;

"(b) That the Administration Bond in usual form was executed by the defendant, Fidelity and Deposit Company of Maryland, as Surety, in the original sum of $80,000.00, which bond, under order of the Probate Court, dated 5th of December, 1922, was reduced to $20,000.00;

"(c) That the only original records included in the Probate Court is the jacket or cover which contained the record and the original order reducing the bond from $80,000.00 to $20,000.00; the Letters of Administration were obtained from the recorded copy thereof in the 'Letters Book'; bond from the recorded copy thereof in the 'Bond Book' and the 'Return Book' contains a recorded copy of the final and only return of the administrator dated 24th of June, 1919, approximately seventeen years and nine months prior to the commencement of this action, showing the then unadministered balance of $1,818.90 and a credit claimed on account of commissions in favor of the administrator of $3,871.72;

"(d) Judge Stewman, the then acting Judge of Probate, died about the year 1920; his successor, Judge H. H. Horton, served about two years and is also dead; Judge J. P. Richards succeeded Judge Horton, served until about 1st of January, 1933, and is now a member of Congress, the latter being succeeded by Judge O. Roddey Bell, the present Judge of Probate and who is the plaintiff in these proceedings;

"(e) In October, 1918, Mary M. Lazenby and other Lazenby heirs, as plaintiffs, instituted an action in the Court of Common Pleas for Lancaster County against R. B. Mackey, as Administrator, and the other Lazenby heirs, for the partition and sale of real estate in aid of assets. The remaining portions of the record in this case are incorporated in Judgment Roll No. 8864 for Lancaster County. A material portion of the record is missing. Mackey, as Administrator, filed an answer in the cause, which is included in the record, alleging that he has filed his final return in the Probate Court; that he has in his hands $1,818.90 for the payment of any indebtedness that might be established against the estate or for distribution, as he might be directed by the Court, and further alleging a reasonable sum should be allowed to him for attorney's fees for the advice and services rendered by his counsel in connection with the administration of the estate; the record also contains an answer filed by the Lazenby defendants, dated 6th of November, 1918, alleging that Mackey, as Administrator, had received the proceeds of the personal estate, no accounting had been made and praying that the Administrator be required to account.

There is also in the record an original Order signed by Judge R. W. Memminger, Presiding Judge, of the 10th of December, 1918, consented to by the attorneys for all of the answering defendants, referring all the issues of law and fact to Paul Moore, Clerk of Court as Special Referee; directing the Clerk to advertise for creditors to appear, file, establish and prove their claims before him, and Mackey, as Administrator, to fully account before the Clerk for his acts and doings as such. The Complaint in the cause is missing and there is in the record no Order or Decree as to the accounting and no final Decree or other Order in the cause. The record contains a copy of the final accounting of Mackey, as Administrator, and recorded in the Probate Court, together with a large number of original claims, receipts and others items of the Administrator applicable to the administration. The 'Pleadings and Judgment Book' for Lancaster County stops at Judgment Roll No. 8780, (which is prior to the Judgment Roll in the particular proceeding, and picks up again at Judgment Roll No. 9395, which is subsequent to the Judgment Roll in the particular proceeding. The 'Pleadings and Judgment Book', the 'Journal Book' of the Court of Common Pleas; the 'Equity Report Book' and the 'Abstract Book' for Lancaster County do not reflect any recorded copies of any Order, Judgment or Decree, which relate to the particular proceeding, other than the Order of Judge Memminger above referred to;

"(f) The original claims, receipts, etc., filed in the proceedings in the Court of Common Pleas by R. B. Mackey, as Administrator, reflect several claims and payments in large amounts which are not reflected as disbursements in the final accounting filed by the Administrator;

"(g) Robert B. Mackey, the Administrator, died on or about the 13th of June, 1929, approximately eight years and three months prior to the commencement of this action;

"(h) Lou M. Mackey, the Administratrix, and LeConte Mackey, the Administrator of the Estate of Robert B. Mackey, and defendants herein, were duly appointed and qualified by the Probate Court for Lancaster County on the 15th of November, 1929, and filed their first and only return with the Probate Court on the 19th day of December, 1930;

"(i) The return of the Administrator and Administratrix for Robert B. Mackey reflects total receipts of $46,263.29 and disbursements of $46,258.09, with a balance of $5.20, with a number of payments in large amounts to several creditors, either paying their claims in full or a substantial portion thereof. An appraisal of the estate, dated 31st of October, 1929, reflects personal property valued at $38,480.65 and real property valued at $41,510.00. The Sun Indemnity Company of New York executed the Administration Bond originally in the sum of $80,000.00 which was reduced under the Order of the Probate Court on the 24th of December, 1930, to $30,000.00, at which time the Order asserted the value of the personal assets as being $15,000.00;

"(j) Paul Moore, the then Clerk of Court, and Special Referee, in the proceedings of Lazenby, et al. v. Mackey, Administrator, et al., who could throw considerable light on those proceedings in Court of Common Pleas is now approximately eighty years of age and according to the Certificate of his attending physician, included in the records, is not now and has not been in condition to testify in the cause on account of illness;

"(k) The Lazenby interests did not file any claims at any time with the Administrator and Administratrix of Robert B. Mackey, Deceased, and those interests; the respective Judges of Probate and the plaintiffs in this action have asserted no claims nor endeavored to collect the alleged balance due herein from any one prior to the commencement of this action, with the exception that certain of the Lazenby interests filed an Answer in the case of Lazenby et al. v. Mackey et al., above referred to, alleging that the Administrator had certain funds in his hands for which he should account."

These facts constitute all of the general facts which are germane to the controversy. The Court now gives consideration to the several issues raised by the pleadings and the position taken by the respective parties with reference to such other facts as may be necessary in connection therewith.

I. As to the Claims Being a Stale Demand and Debarred by Laches or Equitable Estoppel.

(a) The plaintiff takes the position that these defenses are equitable ones; that the action being at law for the breach of the administration bond and not in equity, these defenses are not applicable. It is the Court's desire to consider this position fully and it accordingly does so.

The applicable provisions of the Code are as follows:

Section 352 of Volume I of the Code of ...