Burkhim v. Pinkhussohn

• Citation: 36 S.E. 908,58 S.C. 469
• Parties: BURKHIM v. PINKHUSSOHN.
• Decision Date: 21 August 1900
• Court: South Carolina Supreme Court

36 S.E. 908

58 S.C. 469

BURKHIM v. PINKHUSSOHN.

Supreme Court of South Carolina

August 21, 1900

Appeal from common pleas circuit court of Charleston county; George W. Gage, Judge.

Proceeding to appoint an administrator for the estate of William Neubert, deceased. From a judgment of the circuit court dismissing his appeal from the probate court, and sustaining an order appointing J. S. Pinkhussohn administrator of the estate, L. J. Burkhim appeals. Affirmed.

The following are appellant's exceptions: "(1) That the decree is in contravention of section 1, art. 4, of the constitution of the United States, requiring that 'full faith and credit shall be given, in each state, to the public acts and records and judicial proceedings of every other state,' in this: that it repudiates the appointment of L J. Burkhim as administrator of the estate of William Neubert deceased, by the proper court of Alachua county, in the state of Florida, the residence of the deceased. (2) That the decree is in contravention of said section 1 of article 4 of the constitution of the United States in finding that the administrator, L. J. Burkhim, so appointed by the proper court of Alachua county, in the state of Florida, as a proper person for said administration, 'is not a proper person to be intrusted with the administration of William Neubert.' (3) That there is no evidence that the said L J. Burkhim was not a proper person. (4) Because L. J. Burkhim was the largest creditor of William Neubert, deceased, and entitled to the administration. (5) Because Mr. Pinkhussohn the appointee, was not a creditor (a) because his claim of $2 was a pretext; (b) because the probate judge allowed him to establish such claim by his own oath, contrary to section 400 of the Code; (c) because the probate judge refused to subp na Miss Swan, a witness, to disprove said claim."

W. H. Thomas and Robert E. Davis, for appellant.

J. N. Nathans, J. N. Nathans, Jr., and Huger Sinkler, for respondent.

McIVER C.J.

For reasons that will hereinafter appear, we deem it necessary to set out the "case" in full, which is as follows "J. S. Pinkhussohn, a resident of Charleston, S. C., on the 3d November, 1898, filed his petition in the probate court for Charleston county alleging that William Neubert, a resident of Charleston, South Carolina, and of Gainesville, Florida, died intestate, leaving personal property in Charleston of the value of $25,000, and no relatives in this city; and the petitioner is a creditor, and praying letters of administration, etc. L. J. Burkhim, a resident of Gainesville, Florida, on the same day filed his petition alleging: That Wm. Neubert, of Gainesville, Florida, died 29th October, 1898, intestate, leaving a brother and sister in Germany; the petitioner is a creditor; that deceased had $40 in a bank in Charleston, and perhaps other assets; that petitioner has applied for letters of administration upon this estate in Alachua county, Florida, and has received preliminary papers for the administration thereof. He asks letters of administration. Burkhim also filed a caveat against the granting of letters of administration to Pinkhussohn, because he denies that Pinkhussohn is a creditor, and as a stranger he cannot be appointed; that he (Burkhim) has been appointed administrator ad bona colligenda from the domiciliary court in Florida; that any administration in this county will be only ancillary, and that by granting him (Burkhim) the administration it will prevent circumlocution and expense. Publication of citation was made in regular form for 17th November, 1898, and, the parties appearing upon that day, at the request of Burkhim it was postponed until the 16th December, 1898, when the case was heard and determined. The letters of administration to Pinkhussohn were issued to him on the 17th, reciting, 'Whereas, Wm. Neubert, late of Gainesville, Florida, died intestate, *** leaving property in this state,' etc. The testimony of J. S. Pinkhussohn (objected to by Mr. Thomas for Burkhim) was that at Neubert's request he had paid $2 to Dr. Edwards, a bill for medical attendance on Neubert, some time before Neubert's death, and that he had not been repaid; that Neubert spent three, four, and five months in Charleston, and kept almost all his property here, to wit, securities, moneys in bank, etc.,--some $20,000. He introduced judgments against Burkhim for $2,000. L. J. Burkhim testified that he was a creditor of the estate to the extent of about $20 for a suit of clothes bought for the deceased after death; that the estate in Florida is $400 in cash and a bond for $4,000; that he (Burkhim) is a resident of Gainesville, Florida. He also produced his letters of administration from Alachua county, Florida, by the proper court, giving him (Burkhim,--'in whose fidelity in this behalf I very much confide') the administration of said estate on the 15th December, 1898. The general findings of the probate court, among other things, were: The probate judge of Charleston finds that the assets in Florida are far more than enough to pay all Florida debts; that Pinkhussohn is a creditor, and that Burkhim is not, and that his action in paying for the burial clothes was intended to obtain administration; and, further, that he has unsatisfied judgments against him, and 'I do not regard him as a suitable person to be intrusted with the administration of so large an estate. He is also a nonresident of this state.' He also finds that the heirs of Neubert reside in Germany, and that they have given C. O. Witte, consul of the German empire in Charleston, power of attorney to represent them in all matters pertaining to the estate, and to receive their shares of the estate for them, etc. From this decree Mr. Burkhim appealed to the circuit court, because Burkhim, being the domiciliary administrator of Alachua county, Florida, the residence of the deceased, should be appointed ancillary administrator in this state, and that after his appointment in Florida, without discrediting evidence here, his right is unquestionable; because the Court refused to hear testimony of the domicile; because Pinkhussohn was allowed to establish his creditorship by his own oath; because the administration of Pinkhussohn is clearly in the interest of the debtors of Neubert; because Pinkhussohn, not being a creditor, could only be given [letters] ad bona colligenda; and because he ignored the transcript from Florida proven before him. On the 7th April, 1899, the present respondent moved before Judge Klugh, after due notice, to dismiss the appeal, but on that day his motion was refused, and he served notice of appeal to the supreme court, and...