Dominick v. Rhodes

• Decision Date: 08 February 1943
• Docket Number: 15501.
• Parties: DOMINICK et al. v. RHODES et al.
• Court: South Carolina Supreme Court

24 S.E.2d 168

202 S.C. 139

DOMINICK et al. v. RHODES et al.

No. 15501.

Supreme Court of South Carolina

February 8, 1943

Appeal from Common Pleas Court of Greenwood County; J. Strom Thurmond and E. H. Henderson, Judges.

Action by J. Ryan Dominick, by his guardian ad litem, T. A Dominick, and Drayton M. Dominick, by his guardian ad litem T. A. Dominick, against Kathleen Dominick Rhodes individually and as administratrix of the estate of Ira M Dominick, deceased, for an accounting and partition of real property. From adverse decrees, plaintiffs appeal.

In action against estate of father of two incompetents to account for farm lands which incompetents had inherited and which father had possessed and treated as his own, where it appeared that farming losses exceeded in amount interest chargeable, trial court properly reversed master's award of interest.

Mays & Featherstone, of Greenwood, for appellants.

W. H. Nicholson, of Greenwood, for respondent.

L. D. LIDE, Acting Associate Justice.

The parties to this cause are the sole heirs at law of Ira M. Dominick, deceased, and this action, which was commenced in the Court of Common Pleas for Greenwood County on January 2, 1940, relates to the settlement of his estate, including an accounting and the partition of real property. The defendant is the widow and the plaintiffs are the only children of the intestate. The suit involves 1419 acres of farm land and a warehouse and lot in Coronaca, and also claims of the sons against their father's estate for their shares of their mother's personal estate; the rental value of the lands inherited from their mother; and the proceeds of sale of certain of their lands, timber and topsoil. The suit further involves claims of the sons for lesser amounts against their stepmother as administratrix in the settlement of their father's estate, and against her individually for certain rents.

The cause was referred to the Master who filed a report in April, 1941, and thereafter Judge Thurmond filed a decree, dated November 6, 1941, overruling the Master in some respects and remanding the cause to him for further testimony as to certain questions. The Master's second report was filed February 4, 1942; and on April 23, 1942, Judge Henderson filed his decree adjudicating some of the issues. This decree was definitized in certain particulars by his supplemental decree dated July 2, 1942. The cause comes to us upon the appeal of the plaintiffs from the decrees of both the Judges. As will hereinafter appear, several of the issues involved in the cause have already been finally adjudicated, but there remain for our determination certain controversial issues which we will state later.

Counsel for the respective parties very properly agreed upon a statement of the basic facts, and this agreed statement is set forth in the transcript of record, thus simplifying the issues before us. We will, therefore, recite these agreed facts, with some abbreviation, quoting excerpts from the statement.

Ira M. Dominick died intestate July 11, 1936, leaving as his only heirs at law his widow, Kathleen Dominick (now Kathleen Dominick Rhodes by subsequent marriage), and his two sons by a former marriage, John Ryan Dominick and Drayton M. Dominick, who will frequently be referred to in this opinion simply as Ryan and Drayton. After the death of Ira M. Dominick both of his sons were adjudged by the Probate Court to be non compos mentis, and an uncle, T. A. Dominick, was appointed Committee for each of them. The adjudication as to Drayton was made April 1, 1937, and as to Ryan on December 4, 1939, Drayton was confined in the State Training School at Clinton before he reached his majority, and is conceded to have been non compos mentis continuously since that time. Ryan has never been confined, and is now residing with his stepmother on the estate lands, "the same place at which he resided with his father from the time of his birth until his father's death." His Committee is accounting for his board.

The lands in question were a part of the lands of Estate G. M. Kinard, and descended by inheritance, one-third to his widow and two-thirds to his only daughter, Mamie Lee Dominick, wife of Ira M. Dominick and mother of the plaintiffs. Mrs. Kinard conveyed her interest to her son-in-law, Ira M. Dominick; and the daughter, Mamie Lee Dominick, died intestate June 11, 1925, leaving as her only heirs at law her husband and her two sons. The title to these lands, some 5,600 acres, was then vested in the parties in the following proportions: Ira M. Dominick 5/9, J. Ryan Dominick 2/9, and Drayton M. Dominick 2/9.

Ira M. Dominick administered on the estate of his first wife, Mamie Lee Dominick, and was discharged by the Probate Court on February 28, 1928. In the final settlement, including the proceeds of sale of personal property and some farm lands, he filed a return showing a net balance of $10,302.07, for distribution in equal shares to himself and his two sons; and he filed two receipts, one signed by Ryan for $3,434.02, covering his share of this balance. The other receipt was signed by Ira M. Dominick himself as Guardian for Drayton who was then nineteen years of age, purporting to show receipt for a like amount covering Drayton's interest, Ira M. Dominick having been appointed Guardian for Drayton by the Probate Court; and Ryan was surety on the bond. However, Ira M. Dominick never made a return to the Court of his acts and doings as guardian, nor did he make any accounting to his ward.

In 1930 a suit was brought in the Court of Common Pleas for partition of the Kinard lands which descended in part from Mamie Lee Dominick, and pursuant to a decree made February 19, 1931, 1,599 acres was allotted to Ira M. Dominick, 1,279 acres to Drayton, and 746.1 acres to Ryan. We quote the following from the agreed statement: "Ira M. Dominick had the exclusive management, control and cultivation of all the lands descended from Mamie Lee Dominick excepting parts which were sold off from time to time from the death of Mamie Lee Dominick in 1925 until his death in 1936. The partition of the lands in 1931 did not in any way change his method of managing and cultivating the lands as exclusively his own. The evidence does not indicate that any accounts or records of any kind were kept by Ira M. Dominick of these farming operations."

From time to time Ira M. Dominick sold certain lands, and topsoil and timber from lands, owned by Drayton, as shown on a schedule attached to the Master's first report. And it is conceded that Drayton has a valid claim against the estate for the principal of these items and for $3,434.02 due him from his mother's estate, subject to certain credits shown on the schedule and another credit of $150 shown in the Master's second report. The question of whether certain interest should be added is one of the issues in this appeal. And we quote the following from the agreed statement: "A number of sales of the lands of John Ryan Dominick were negotiated by Ira M. Dominick and the proceeds of sales collected by him. The deeds in each instance were signed by John Ryan Dominick without order of Court, John Ryan Dominick not having been adjudged incompetent at that time. Ira M. Dominick also sold and collected for certain timber and topsoil from lands in which Ryan had an interest prior to the partition in 1931. There is no evidence that Ira M. Dominick paid over to or otherwise accounted to Ryan for the proceeds of these sales of lands, topsoil and timber." These sales are shown as separate items in a schedule attached to the Master's first report.

The defendant, Kathleen Dominick Rhodes, has been in the continuous possession of the Ira M. Dominick estate lands since his death, and the Master in his first report found that she should account for rents for 1937, 1938 and 1939 in a certain sum, which was confirmed by Judge Thurmond, and no appeal taken. And the rents for 1940 and 1941 have heretofore been finally adjudicated. The rent for 1942, however, is one of the controversial issues. The plaintiffs had offered to pay sixteen bales of cotton (meaning, we suppose, if the property were turned over to them), and the Master in his second report had fixed the rental value for 1942 at fourteen bales, but Judge Henderson reduced it to ten bales. Plaintiffs appeal from Judge Henderson's ruling in this respect, and contend that the rent should be sixteen bales.

John Ryan Dominick did not testify in the proceeding in the Probate Court in which he was adjudged non compos mentis, and a Committee appointed, nor did he testify in the instant suit.

There are eleven exceptions, nine to the decree of Judge Thurmond and two to the decrees of Judge Henderson. The exceptions to the decrees of Judge Henderson relate only: (a) To his holding that losses of Ira M. Dominick in farming the lands of Drayton exceeded the amount of interest on certain funds of Drayton held by him, and hence such interest should not be charged; and (b) to his holding that rent chargeable against the defendant, Mrs. Rhodes, for 1942, should be ten bales of cotton instead of sixteen bales, or fourteen bales as found by the Master.

Referring to the nine exceptions to the decree of Judge Thurmond, it should be observed that the third exception was not argued, and it is admitted that the ninth exception is immaterial. Certain other exceptions raise the most important issue before the Court, and that relates to the liability, if any, of the estate of Ira M. Dominick to J. Ryan Dominick; and some exceptions relate to the matter of liability of the estate to Drayton M. Dominick.

All of these issues are stated in the brief of appellants as follows:

"1. Was J. Ryan Dominick non compos mentis before he...