Crane, Boylston & Co. v. Moses

• Decision Date: 01 September 1880
• Citation: Crane, Boylston & Co. v. Moses, 13 S.C. 561 (S.C. 1880)
• Court: South Carolina Supreme Court
• Parties: CRANE, BOYLSTON & CO. v. MOSES.

13 S.C. 561

CRANE, BOYLSTON & CO.

v.MOSES.

Supreme Court of South Carolina.

CASE ^a1No. 912.

Sept. 1st, 1880.

1. Where a creditor obtained judgment against the executor of his debtor, and then instituted a creditor's action, setting forth his judgment in the complaint, upon which an injunction was issued, and the answers did not deny the indebtedness, and the judgment was proved at the hearing- Held, that the claim was sufficiently established. This case distinguished from Westfield v. Westfield, 13 S.C. 482.

2. Executors who, after having duly advertised for creditors, and having no knowledge of outstanding debts, pay legacies more than two years after testator's death, are not guilty of a devastavit.

3. Executors having no knowledge of a debt due by their testator, are not chargeable with notice of such debt from papers in their possession as executors.

4. A creditor has no cause of complaint, if executors turn over pecuniary legacies to those who are entitled to hold for life only, upon the unsealed releases of the remaindermen.

5. A surety upon a bond conditioned to hold negroes upon certain trusts, cannot be charged with a balance due by the trustee, as stated in his returns on file in the proper office; the breach must be judicially declared in action against the principal, and upon this subject the surety has a right to be heard.

6. A trustee having received confederate money in June, 1863, deposited it upon interest with bankers of high standing, and entered the Confederate army soon afterwards and died in March, 1864, and the bankers failed soon after the war- Held, that the trustee was not liable for the loss.

7. A trustee having received money for the trust estate in 1860 and 1861, deposited it upon interest, with his individual funds, with bankers of high standing, and died in 1864, and the money was lost by the failure of the bankers after the war- Held, that he was not liable.

MCIVER, A. J., dissenting.

Before HUDSON, J., Sumter, September, 1879.

The questions brought up by this appeal relate to claims of creditors of the estate of one deceased. The nature of those claims are fully stated in the opinion of the court, it being proper to add only, that the moneys received by Phillips, as trustee for Rose B. Quinn, were as follows: $4681.54, in January, 1860, and $1254.95, in February, 1861; and that the remaindermen, in 1866, by a paper not under seal, directed the executors to turn over to Emily and Ellen Phillips, the moneys and other property left to those ladies for life by the will of N. Phillips, releasing the executors from all liability for so doing, and agreeing to look only to the life tenants for their interests in remainder. All other matters are fully stated in the Circuit decree, which is as follows:

The plaintiffs obtained judgment against F. J. Moses and M. Moses, executors of the last will and testament of N. Phillips, deceased, on October 11th, 1871, for the sum of $1566.31 principal, besides interest and costs. Fi. fa. was issued on the said judgment (which was the result of a trial by jury and verdict rendered in regular term time), and lodged with the sheriff of Sumter county on October 19th, 1871. A certified copy of said judgment was duly lodged in the clerk's office of Marion, and execution issued thereon. Levy was made on certain lands of the said N. Phillips, deceased, in the said county of Marion, but no sale was made thereof, by reason of some order restraining the sheriff, obtained in some manner not now made known to the court; but which must have been irregular, since it appears that no notice thereof was ever given to the plaintiffs or to the executors of Phillips, and no legal proceedings have ever been taken on which said order could have been granted. The plaintiffs then filed the complaint in this action, and obtained an order of injunction in the usual form on March 12th, 1872, which order provided, in the third clause thereof, that all persons having any claims against the estate of the said N. Phillips do file and prove such claims under these proceedings. The executors were also called and required to account for their administration of the said estate, and suing creditors restrained from further proceedings, except under this case.

On May 19th, 1873, an order was taken out in the cause, extending the time for creditors to prove their demands until January 1st, 1874. The judge of Probate of Sumter county was ordered to take and state the account of the executors, and the issues, both of law and fact, were referred to him. The defendants (executors of N. Phillips) were both upon the bench at that time, and no accounting was had.

On January 18th, 1877, an order was obtained in the said cause transferring the reference to the judge of Probate of Marion county, with the powers and duties of referee as above. The judge of Probate of Marion county undertook to assume the entire disposition of the subject matter of the suit, holding that the Court of Common Pleas for Sumter county was without jurisdiction over the cause; and in accordance with the view, he entertained a petition of one Richard Jordan against F. J. Moses and M. Moses (which petition was filed on January 9th, 1877,) for an account from the executors and sale of the real estate of the said N. Phillips, etc. On August 2d, 1877, the said judge of Probate, John Wilcox, filed his decree upon the petition of the said Richard Jordan, who styled himself trustee for the estate of Rose B. Quinn and Margaret McNeill. An appeal was then taken from this judgment to the Court of Common Pleas for the county of Marion, and on November 5th, 1877, the whole proceedings were set aside and quashed by the judgment of the Hon. A.J. Shaw, who held that the said Court of Probate had no jurisdiction over the subject matter, by reason of the pendency of this action in the Common Pleas for Sumter county; in which county both executors resided at the time this action was commenced. An appeal was taken from this judgment of Hon. A. J. Shaw, and he was sustained by the Supreme Court and his judgment confirmed. 10 S. C. 431. Thereupon the said John Wilcox, judge of Probate for Marion county, filed a copy of his judgment above referred to, as his report under the authority of the order of reference,made to him in this cause on January 18th, 1877, hereinbefore referred to. Counsel for plaintiffs and defendants in this cause both excepted to this report, and on March 30th, 1878, his Honor, Judge Pressley, made his order in the cause, after hearing argument from all parties, whereby he rescinded all the former orders of reference in the cause, and ordered that neither the said report of the judge of Probate of Marion county, nor any of the papers or testimony accompanying the same, be held as part of the proceedings in this cause; also referring the issues of law and fact in the cause to T. B. Fraser, Esq., who was also instructed to take and state the account of Montgomery Moses, as executor of N. Phillips, deceased-his co-executor, F. J. Moses, having died pending this action. The Hon. T. B. Fraser having been elected judge before the reference was held, an order was made on January 15th, 1879, by his Honor, Judge Mackey, whereby he rescinded so much of the order made by his Honor, Judge Pressley, as appointed T. B. Fraser, Esq., referee, and all issues of law and fact in the cause were referred to Charles Mayrant, Esq., master in equity for Sumter county, who held references-on September 8th, 1879, filed his report; and this cause came on to be heard before me on exceptions filed to the report of the said Charles Mayrant, Esq., master in equity for Sumter county.

To the proper understanding of the issues involved, it may be proper to state a few facts, as collected from the evidence submitted.

N. Phillips died March 4th, 1864. His executors named in his will were F. J. Moses and M. Moses. M. Moses seems to have acted mainly in the management of the estate. Legal advertisement was made by the executors very soon after the death of N. Phillips in 1864. None of the creditors now before the court gave notice of any claims. The plaintiffs obtained judgment against the executors October 11th, 1871. As before stated, December 4th, 1871, they sold, by the sheriff of Sumter county, the law library and some parlor furniture under their execution, which brought a small sum. The plaintiffs commenced this action for the settlement of the estate on March 11th, 1872. C. C. Law had then brought suit on a note, said to have been lost, and which was made to one R. B. Fladger, and due on November 15th, 1863. No notice was given and no action taken on the claims said to be due to the estates of Rose B. Quinn and Margaret McNeill, until the year 1877.

The plaintiffs, Crane, Boylston & Co., except to the report of the referee (master):

First. Because the master has found, as matter of law, “that the liability of Fairlee having been established and in no way discharged, by payment or otherwise, it subsisted against the surety, Phillips, at the time of his death, consequently against his executors as a specialty debt.” These words are quoted from the master's report. In the testimony reported it is difficult to perceive how the master has reached the conclusion that the liability of Fairlee had been established and in no way discharged by payment or otherwise. In fact, there seemed to have been no evidence of any effort to collect the sums which are claimed to have been due by Fairlee, either from him or his estate, which, it is shown, has been under settlement in the court of equity for Marion county for a number of years past.

Before the estate of Phillips can be properly charged with the debt of Fairlee, it will be both proper and necessary that proof be made before the master that the liability of Fairlee existed at the date of the reference, and had not been paid or discharged, either in whole or in part, and this proof must...