Cunningham v. Cauthen

• Decision Date: 15 April 1895
• Citation: 21 S.E. 800,44 S.C. 95
• Parties: CUNNINGHAM et al. v. CAUTHEN et al. (two cases).
• Court: South Carolina Supreme Court

21 S.E. 800

44 S.C. 95

CUNNINGHAM et al. v. CAUTHEN et al. (two cases).

Supreme Court of South Carolina

April 15, 1895

Appeal from circuit court, Lancaster county; Ernest Gary, Judge.

Action for an accounting by W. J. Cunningham and others against Lewis J. Cauthen, as administrator of A. J. Kibler, deceased. From a decree confirming the referee's report, both parties appeal. Modified.

Following are the exceptions to the circuit decree:

"(1) For that the circuit court therein erred in concluding that the estate of the defendant's intestate is not chargeable in the accounting herein, under the decree of the supreme court herein, with the premium collected by the said Andrew J. Kibler on the notes taken by him for the cotton originally belonging to the estate of Joseph A Cunningham, deceased.

(2) For that the circuit court, having confirmed the finding by the referee that the defendant's intestate collected on the said cotton notes premiums on gold amounting in the aggregate to the sum of $2,063.71, erred in concluding that the estate of the said Andrew J. Kibler, under the decree of the supreme court, was not chargeable with the premium so collected.

(3) For that the circuit court, having confirmed the finding by the referee that the defendant's intestate collected on the said cotton notes premiums on gold amounting in the aggregate to the sum of $2,063.71, erred in failing to conclude that such collection of the premium on the cotton notes was in effect a conversion of the gold of the estate into currency, and erred in failing to conclude that, under the decree of the supreme court herein, the estate of the said Andrew J. Kibler is liable to account to the plaintiffs for the premiums so collected.

(4) For that the circuit court, having confirmed the finding by the referee that the cotton bid off at the sale of the personalty of the Cunningham estate, by the said A. J. Kibler was worth 39 1/5 cents in currency, erred in failing to conclude that, under the decree of the supreme court herein the estate of the said Andrew J. Kibler is chargeable therewith at the said currency value, in the face of the holding by the supreme court herein that 'the administrator, having bid off the cotton at the estate sale became liable to the estate for the actual value thereof.'

(5) For that the circuit court therein erred in concluding that there was no error by the referee in excluding further testimony offered by the plaintiffs as to the receipt by the said Andrew J. Kibler of the premium on gold upon sales of property, and upon sale notes belonging to the estate of his said intestate.

(6) For that the said circuit court erred in concluding that under the decree of the supreme court herein, no error was committed by the referee in so stating the accounts between the defendant's intestate and the several distributees of the estate of Joseph A. Cunningham as to charge each of said distributees with interest on the several amounts paid to or for the said several distributees by the said Andrew J. Kibler.

(7) For that the said circuit court erred in concluding that, under the decree of the supreme court herein, no error was committed by the referee in so stating the accounts between the defendant's intestate and the several distributees of the estate of Joseph A. Cunningham as to charge each of said distributees with interest on the several amounts paid to or for the said several distributees, there being at the time of such payments, surplus interest belonging to the estate of the said Joseph A. Cunningham in the hands of the said Andrew J. Kibler, upon which surplus interest no interest is charged against him in the accounting.

(8) For that the circuit court erred in concluding that, in stating the accounts between the several distributees and the estate of the defendant's interstate under the decree of the supreme court herein, interest was properly chargeable against each distributee upon advances made out of idle interest moneys in the hands of said defendant's intestate, as administrator; said conclusion being contrary to the principles announced by the decree of the supreme court herein, that interest could only be charged on such advances so far as the same should be necessary to 'reimburse the administrator for such interest as had been charged him on the advances.'

(9) For that the circuit court erred in concluding that, under the decree of the supreme court herein, no error was committed by the referee in charging the several distributees with interest upon payments made by the administrator of Joseph A. Cunningham to such distributees, while interest moneys belonging to said estate were at the same time lying idle in the hands of the said administrator.

(10) For that the circuit court erred in concluding that, under the decree of the supreme court herein, no error was committed by the referee in stating the accounts between the said Andrew J. Kibler, administrator, and William J. Cunningham, a distributee, in charging interest up to June 1, 1893, on payments made by the said Andrew J. Kibler to and for the said William J. Cunningham, as below stated, there being at the several dates below named surplus interest in the hands of the said administrator larger in amount than the payments below stated, and upon which no interest is charged against the said administrator; that is to say, in charging interest on $21.40 from January 1, 1869; on $588.99 from January 1, 1870; on $410.25 from January 1, 1871; on $2.40 from January 1, 1872; on $306.86 from January 1, 1877; on $1,081.44 from January 1, 1880; on $100 from January 1, 1881, and on $150 from January 1, 1882.

(11) For that the circuit court erred in concluding that, under the decree of the supreme court herein, no error was committed by the referee, in stating the accounts between the said Andrew J. Kibler, administrator, and Mary C. Dunlap, a distributee, in charging interest up to June 1, 1893, on payments made by the said Andrew J. Kibler to and for the said Mary C. Dunlap, as below stated, there being at the several dates below named surplus interest in the hands of the said administrator larger in amount than the payments below stated, and upon which no interest is charged against the said administrator; that is to say, in charging interest on $305.68 from January 1, 1867; on $71 from January 1, 1868; on $1,803.50 from January 1, 1869; and on $150 from January 1, 1882.

(12) For that the circuit court erred in concluding that, under the decree of the supreme court herein, no error was committed by the referee in stating the accounts between the said Andrew J. Kibler, administrator, and Thornwell K. Cunningham, a distributee, in charging interests up to June 1, 1893, on payments made by the said Andrew J. Kibler to and for the said Thornwell K. Cunningham, as below stated, there being at the several dates below named surplus interest in the hands of the said administrator greater in amount than the payments below stated, and upon which no interest is charged against the said administrator; that is to say, in charging interest on $27.50 from January 1, 1868; on $12.75 from January 1, 1869; on $259.74 from January 1, 1870; on $98.57 from January 1, 1871; on $68.47 from January 1, 1872; on $114.95 from January 1, 1873; on $59.15 from January 1, 1874; on $6.50 from January 1, 1875; on $1,120.53 from January 1, 1880; on $107.45 from January 1, 1881; and on $200 from January 1, 1882.

(13) For that the circuit court erred in concluding that, under the decree of the supreme court herein, no error was committed by the referee in stating the accounts between the said Andrew J. Kibler, administrator, and Nannie C. Vanlandingham, a distributee, in charging interest up to June 1, 1893, on payments made by the said Andrew J. Kibler to and for the said Nannie C. Vanlandingham, as below stated, there being at the several dates below named surplus interest in the hands of the said administrator greater in amount than the payments below stated, and upon which no interest is charged against the said administrator; that is to say, in charging interest on $5.40 from January 1, 1869; on $173.32 from January 1, 1870; on $191.84 from January 1, 1871; on $112.25 from January 1, 1872; on $151.33 from January 1, 1873; on $295.31 from January 1, 1874; on $513.08 from January 1, 1875; on $423 from January 1, 1878; on $1,107.35 from January 1, 1880; and on $100.00 from January 1, 1881; and on $150 from January 1, 1882.

(14) For that the circuit court erred in concluding that, under the decree of the supreme court herein, no error was committed by the referee in stating the accounts between the said Andrew J. Kibler, administrator, and Beauregard Cunningham, a distributee, in charging interest up to June 1, 1893, on payments made by the said Andrew J. Kibler to and for the said Beauregard Cunningham, as below stated, there being at the several dates below named surplus interest in the hands of the administrator greater in amount than the payments below stated, and upon which no interest is charged against the said administrator; that is to say, in charging interest on $7 from January 1, 1869; on $127.07 from January 1, 1870; on $178.82 from January 1, 1871; on $62.36 from January 1, 1872; on $72.08 from January 1, 1873; on $25.72 from January 1, 1874; on $113.66 from January 1, 1875; on $25.20 from January 1, 1876; on $206.03 from January 1, 1877; on $441.80 from January 1, 1878; on $500 from January 1, 1880; on $370 from January 1, 1881; and on $740 from January 1, 1882.

(15) For that the circuit court erred in allowing the charges of interest on the items of payments or advances against the said several distributees, mentioned in the above exceptions numbered 11 to 14 inclusive, when said payments were

...