Bell v. Mackey
|12 July 1939
|3 S.E.2d 816,191 S.C. 105
|BELL, Probate Judge, v. MACKEY et al.
|South Carolina Supreme Court
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:
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;
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.
(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 ...
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