Carver v. Morrow

• Decision Date: 26 July 1948
• Docket Number: 16111.
• Citation: 48 S.E.2d 814,213 S.C. 199
• Parties: CARVER v. MORROW et al.
• Court: South Carolina Supreme Court

48 S.E.2d 814

213 S.C. 199

CARVER v. MORROW et al.

No. 16111.

Supreme Court of South Carolina

July 26, 1948

Appeal from Common Pleas Circuit Court of Spartanburg County; E. H Henderson, Judge.

Action for damages for allegedly defamatory language contained in will by C. L. Carver against D. West Morrow and another, as executors of the last will and testament of Pearl K. Carver deceased. From an order sustaining defendants' demurrer to the complaint, the plaintiff appeals.

Order of Judge Henderson in Court of Common Pleas:

This case comes before the Court upon a demurrer by the defendants to the plaintiff's complaint. The question to be decided is this: Can the plaintiff maintain the action against the estate of a testator for damages for defamatory language contained in his will?

This is a novel question in South Carolina, and there are very few cases throughout the whole country bearing upon this point. The Supreme Court of Tennessee, in the case of Harris v Nashville Trust Co., 128 Tenn. 573, 162 S.E. 584, 586 49 L.R.A.,N.S., 897, Ann.Cas. 1914c, 885, has held that such an action may be maintained. This case holds that the maxim 'actio personalis moritur cum persona' does not apply, since the right of action did not exist in the lifetime of the testator; that the libel contained in the will was published by the probate thereof; and that the executor was acting as the agent of the testator in making the publication in accord with the authority given by him.

Exactly the opposite conclusion is reached in the Georgia case of Citizens' & Southern National Bank v. Hendricks, 176 Ga. 692, 168 S.E. 313, 87 A.L.R. 230. The Supreme Court of Georgia held that no liability for libel arises if one who places libelous matter in his will dies before publication thereof; that the executor's status is that of an agency of the law to administer the estate, and not the representative of the person of the testator.

This diversity of opinion is shown by the following from 53 C.J.S., Libel and Slander, § 82, page 135: 'While it has been held that the probate of a will containing defamatory matter is not such a publication thereof as creates a cause of action for libel against the testator's estate, it has also been held that the probate of such will is a publication thereof, creating a cause of action against the estate of the testator, which cause of action is considered to have accrued subsequent to the testator's death; hence it is not abated by his death. Since the executor of the will is in duty bound to probate it, it has been held that he is not liable for the publication arising from the probate of the will.'

Substantially the same principle is stated in 33 Am.Jur. 109, where it is said that 'there is some difference of opinion as to the effect of the publication, after the death of the testator, of a will containing libelous matter. The rule in some jurisdictions is that the probate of the will constitutes such a publication as to render the estate of the testator liable in an action for libel, although it does not subject to any personal liability an executor at whose instance the will was probated. In other jurisdictions, however, the Courts have taken the view that the probate of the will does not give rise to any liability upon the estate of the testator.'

I am of the opinion that the principles set forth in the Georgia decision are more nearly in accord with the law and decisions of our State on the question of actions for libel.

It is a well recognized rule that the publication of a libel is essential to give rise to a cause of action. No matter what a person may write, if it is not published, there is of course no liability, since no one is injured. Riley v. Askin & Marine Co., 134 S.C. 198, 132 S.E. 584, 46 A.L.R. 558.

It is a rule of the common law, which has long been followed in this State unless changed by statute, that a personal action ex delicto dies with the person. 1 C.J.S., Abatement and Revival, §§ 143, 145, pages 196, 200. This principle is set forth in the old maxim 'actio personalis moritur cum persona.' This common law rule has been amended by legislative act in various instances, to cover certain designated actions for tort. Among others, we find Section 419 of the code, wherein it is provided that cause of action for injuries and trespasses upon real estate, and injuries to the person or personal property, shall survive. It will be noted that the General Assembly was careful in not including actions for injury to character. An action for libel is one ex delicto, and is a personal action. Perry v. Atlantic Coast Life Ins. Co., 166 S.C. 270, 164 S.E. 753. It is clear, therefore, that an ordinary cause of action for libel or slander dies with the person. No matter how wickedly a libel may be made and published, and no matter how serious may be the consequences and the damages suffered by reason of such libel, if the person who utters the libel should die, the injured party has no redress whatsoever in the courts, the cause of action being buried along with the decedent.

Since there was no publication of the alleged libel in this case during the lifetime of the testator, there is no basis whatsoever for holding his estate for the publication made by probating the will after his death, unless it be considered that the executor is the agent of the testator for the purpose of consummating the tort.

It does not seem to me that this is the law. As quoted from a decision of Lord Ellenborough in the Hendricks case [176 Ga. 692, 168 S.E. 314]: 'Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased but not of their wrongs, except where these wrongs operate to the temporal injury of the personal estate.'

I think the Supreme Court of Georgia makes a sound and logical statement when it says 'that the executor was a creature or agency of the law to administer the estate, and was not the testator's representative in the continuation or consummation of the testator's wrong.'

It is the duty of an executor to probate the will. He has no...