Elmore v. Elmore

• Decision Date: 26 July 1900
• Citation: 36 S.E. 656,58 S.C. 289
• Parties: ELMORE v. ELMORE.
• Court: South Carolina Supreme Court

36 S.E. 656

58 S.C. 289

ELMORE v. ELMORE.

Supreme Court of South Carolina

July 26, 1900

Appeal from common pleas circuit court of Laurens county; R. C Watts, Judge.

Action of claim and delivery by L. C. Elmore against J. T. Elmore executor of the last will and testament of George Elmore deceased. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

W. R Richey, for appellant.

J. L. M. Irby, for respondent.

GARY, A. J.

The record contains the following statement of facts: "On the 21st day of November, 1898, appellant, L. C. Elmore, named above, commenced this action in Magistrate J. M. Hudgens' court, in Laurens county, against J. T. Elmore, as executor of the last will and testament of George Elmore, deceased, the defendant (respondent) above named, to recover possession of a mulo, alleged to be of value of seventy-five dollars. On the trial of the case, Magistrate Hudgens dismissed plaintiff's complaint upon the grounds that the action was prematurely brought, and that the plaintiff had not given any undertaking. The plaintiff appealed to the Circuit Court of Common pleas for Laurens county, alleging error on the part of the magistrate. The appeal was heard at February, 1899, term of court, by Judge George W. Gage, who reversed the judgment of the magistrate, and remanded the case to the court of J. M. Hudgens, magistrate, or his successor in office, for trial. There was no appeal from Judge Gage's order. On the 8th day of July, 1899, the case was tried before J. W. Peterson, magistrate, who had succeeded J. M. Hudgens as magistrate, at Laurens, S.C. Before the plaintiff closed the testimony, and before he concluded the examination of his first witness, Magistrate Peterson granted a nonsuit. The plaintiff again appealed to the circuit court of common pleas for Laurens county, upon various grounds. The second appeal was heard at October, 1899, term of court by Judge R. C. Watts, who did not consider plaintiff's grounds of appeal, but dismissed plaintiff's appeal and confirmed the judgment of the magistrate on the ground that no action of claim and delivery of personal property could be sustained against a party, as executor, for an unlawful possession. The plaintiff appeals to this court, alleging error on the part of Judge Watts."

The practical question raised by the exceptions is whether there was error in the ruling of the circuit judge that "no action of claim and delivery of personal property could be sustained against a party, as executor, for an unlawful possession." There can be no question as to the manner in which the defendant came into possession of the property, for in his answer he alleges, as a fact which the plaintiff does not deny, that he came into possession of the mule as the executor of the will of George Elmore, deceased. In 7 Am. & Eng. Enc. Law (1st Ed.) 332, the doctrine is thus laid down: "At common law no action founded upon a tort committed by the deceased, for which damages only could be recovered as satisfaction, such as trespass, trover, false imprisonment, assault and battery, slander, deceit, *** and the like, where the declaration imputed a tort to person or property, and the plea must be, 'Not guilty,' lay against his executor or administrator. But if by reason of the tort the estate has derived pecuniary advantage, the representative could be compelled to account to the injured party, in another form of action, for the benefit so obtained. Thus, if goods wrongfully taken away by the deceased remain in specie in the hands of the executor or administrator, the rightful owner might maintain replevin or detinue against such executor or administrator to recover them back; or trover, laying the conversion to have been by the representative; or, if sold, an action for money had and received to recover their value." In 3 Williams, Ex'rs, 1602, it is said: "In some, however, of the cases above mentioned, a remedy may be had against the executor or administrator in another form. Thus, although at the common law an action of trover upon a conversion of the testator dies with him, yet if the goods, etc., taken away continue still in specie in the hands of the executor or administrator of the wrongdoer, replevin or detinue will lie against such executor or administrator to recover them back; or trover, laying the conversion to have been by the executor; or, in case they are sold, an action for money had and received, to recover their value." The following cases throw light upon this question: Jenkins v. Bennett, 40 S.C. 393, 18 S.E. 929; Huff v. Watkins, 20 S.C. 477; Chaplin v. Barrett, 12 Rich. Law, 284; Ford v. Caldwell, 3 Hill, 248; Middleton's Ex'rs v. Robinson, 1 Bay, 58. If the testator had sold the mule, the plaintiff could have sued the executor for the value thereof, and we see no reason why he should not be allowed to recover the specific property, if he can show that it belongs to him. Since there is no question that the mule came into the possession of the defendant as executor of the testator's will, I think the judgment of this court should be that the judgment of the circuit court be reversed, and the case remanded for a new trial; but, as two members of this court are of the contrary opinion, the judgment of the circuit court must stand affirmed.

POPE, J. (concurring).

I am conscious that an example is to be set, but I am ready to assist in setting such example. I cannot conceive that a man who takes my mule, and then dies, having named an executor, which executor takes possession of my mule as assets of his testator's estate, to be by him administered, and upon my demand for my mule declines to surrender the mule to me, and, when I sue him to recover my mule in a magistrate's court, his reply is, "You cannot sue in claim and delivery," will be protected by law. If the executor surrenders the mule on my demand, without suit, will not he have to account for such surrender to the legatees of his testator? If the executor refuses to surrender, must I stand by and take no steps to recover my mule? If the executor had been the original tort feasor, I admit he could plead that his taking of the mule was his personal act, and in no manner connected with his testator's estate. But the testator took my mule, and died with said mule in his possession (which last, we have heard it said, was nine points out of a possible ten in the law). His executor succeeds to the testator's possession, in his representative character. When I demand my mule, and I am refused possession of him by such executor on the ground that the mule belonged to the estate of his testator, of course I must sue him as executor. I concur in the opinion of Justice GARY and the judgment of reversal.

McIVER C.J.

Being unable to concur in the conclusion reached by Mr. Justice GARY in the opinion which he has prepared in this case, I propose to state the grounds of my dissent. The appeal turns upon the single question whether the circuit judge erred in holding that an action of claim and delivery of personal property brought against the defendant as executor of the will of the testator, George Elmore, under the allegations that he, as such executor, is in the unlawful possession of such property, cannot be maintained, but that such action should have been brought against the defendant individually, and not as executor. This is an important question, far-reaching in its results, and, it is claimed, has never heretofore been distinctly decided in this state. It is not a mere question of pleading or of the proper parties to an action, but its decision vitally affects the interests of those who may be interested in the estates of decedents; for if this case is allowed to proceed in its present form, and the plaintiff shall succeed in establishing his right to the possession of the mule sued for, or damages in lieu thereof, then it is clear that a liability will be fastened upon the estate of the testator, not by reason of any act of his own (for it is distinctly declared that "no wrong is imputed to defendant's testator"), but solely because of a tort committed by the defendant, who has been appointed executor of the testator's will. So that it seems to me that the practical inquiry is whether one who has been instructed by a decedent with the execution of his will can by any act or omission of his own fasten a legal liability upon the estate of his testator, in the absence of any provision in the will investing him with authority so to do; and it is not pretended that there is any such provision in the will in the case.

The doctrine is well settled that neither an executor, in the absence of authority in the will so to do, nor an administrator, can, by contract, either express or implied impose any new debt upon the estate of the testator or intestate, as the case may be. McBeth v. Smith, 2 Tread. Const. 676 (reported, also, in 3 Brev. 511); Nehbe v. Price, 2 Nott & McC. 328, where Mr. Justice Huger, in delivering the opinion of the court, said that the point had been repeatedly decided; O'Neall v. Abney, 2 Baily, 317; Wilson v. Huggins, 11 Rich. Law, 410; Cook v. Cook, 24 S.C. 204. This rule is also recognized in the court of equity, as may be seen by reference to the case of Boggs v. Reid, which, though an equity case,...