Erwin v. Patterson, 17145

• Decision Date: 12 April 1956
• Docket Number: No. 17145,17145
• Citation: 229 S.C. 188,92 S.E.2d 464
• Parties: Marion J. ERWIN, Probate Judge, Abbeville County, Appellant, v. E. A. PATTERSON et al., Respondents.
• Court: South Carolina Supreme Court

Page 464

92 S.E.2d 464

229 S.C. 188

Marion J. ERWIN, Probate Judge, Abbeville County, Appellant, v. E. A. PATTERSON et al., Respondents.

No. 17145.

Supreme Court of South Carolina.

April 12, 1956.

J. M. Nickles, Abbeville, Doyle & Doyle, Anderson, for appellant.

Ralph J. Syfan, Abbeville, for respondents.

MOSS, Justice.

I. D. Knox died on June 15, 1928 and his son, David S. Knox, who was a minor seventeen years of age, became entitled to receive the sum of $833.34 from an insurance policy on the life of his father. It became necessary because of the minority of David S. Knox that some suitable person be appointed his guardian. Pursuant to due application by the said minor, E. A. Patterson was, on June 22, 1928, by the Probate Court of Abbeville County, appointed his guardian. In order to qualify as guardian E. A. Patterson executed a bond in the sum of $3,000, conditioned for the faithful performance of his duties as guardian, with W. T. Patterson and J. M. Patterson as sureties thereon. E. A. Patterson, upon his qualifying as guardian of David S. Knox, received the insurance fund and deposited same in the Bank of Antreville, of which he was not only a majority stockholder but he was also its president, cashier, general manager and a director thereof.

The record shows that the Bank of Antreville failed in January, 1931 and at such time there was on deposit to the credit of the guardian in said bank, the sum of $844.44.

This action was instituted on August 19, 1931 by Addison B. Carwile, the then Probate Judge of Abbeville County, against E. A. Patterson and the sureties on his bond. It should here be stated this cause was pending for a great number of years and it became necessary, from time to time, to substitute as plaintiff each successive Probate Judge until finally the appellant was the last substitute plaintiff.

The complaint charges that E. A. Patterson, who had the official capacity with the Bank of Antreville heretofore recited, that the said guardian in violation of his trust as such, negligently deposited the guardianship funds in the Bank of Antreville, when he knew the bank was insolvent, and that he permitted the said funds to remain on deposit until it closed. It is further charged that he deposited the said trust fund without securing the approval of the Probate Court and that he failed and neglected to take any security for the said fund so deposited, and as a result of his negligent failure the minor has suffered a loss of $844.44, upon which plaintiff claims interest.

The respondents filed an answer wherein the official capacity of E. A. Patterson with the Bank of Antreville is admitted, and that in depositing the trust fund in said bank that the guardian was acting in good faith and exercised due diligence in the handling of said funds. The answer also denied any neglect of duty on the part of the guardian.

The action was pending in the Court of Common Pleas for Abbeville County from 1931 until it was finally tried before the Honorable J. Frank Eatmon, and a jury, with a verdict resulting in favor of the defendants. It is not here necessary to recite the various motions and hearings had in the case during its pendency for trial.

The appellant made timely motions for a directed verdict and for judgment non obstante veredicto, all of which were refused. From such adverse rulings on said motions, this appeal is prosecuted upon seven exceptions, which pose two questions. (1) Was there error in refusing appellant's motion for a directed verdict on account of the failure of the guardian to obtain written approval from the Probate Judge for deposit of the trust fund in the Bank of Antreville. (2) Was there error in refusing appellant's motion for a directed verdict on the ground that the evidence was susceptible of no other reasonable conclusion other than that the guardian was guilty of negligence in the handling of the trust fund.

The appellant, by the first question, asserts that the guardian, under the terms of Section 5462, Vol. III, 1922 Code of Laws of South Carolina, before depositing any funds belonging to his ward in the Bank of Antreville, should have obtained the written authority or approval of the Probate Judge for such deposit, and that his neglect so to do makes both him and his sureties liable for the funds lost by the failure of the bank.

This Code Section is in the following language:

'That any guardian, committee, trustee, executor, administrator or other person or corporation chargeable with interest on funds in hand belonging to either ward or other person or corporation be, and he or it or they are hereby, authorized and empowered to invest same in bonds of the State of South Carolina, or some political division thereof, or in bonds of the United States, or to deposit same in some savings bank, such investment or deposit, however, to be first approved by the Court having jurisdiction of such fund, and in his account he shall not be chargeable at a greater rate of interest than such fund so earns.' (Emphasis added.)

Under the provision of the aforesaid section, it is clear that the guardian in this case, before making the deposit of the funds in his hands, should have secured the written approval of the Probate Court. Has the appellant shown that the deposit of the fund in his hands was made without the approval of the Probate Court? The only proof of this fact was the introduction into evidence of the Probate record in this case. There was no order of approval in the record. The appellant testified that he had no personal knowledge as to whether or not the roll contains everything that was originally in it. His entire knowledge was based upon the contents of the Judgment Roll in the Probate Court. The burden was upon the appellant to show affirmatively that no such order was ever made. It must be kept in mind that the guardian was appointed in 1928 and this case was tried some twenty-five years later. There is a presumption that where in a court of general jurisdiction the record is silent, the proceedings are presumed to be regular and this presumption applies also to Courts of Probate and especially after a long lapse of time. Clark v. Neves, 76 S.C. 484, 57 S.E. 614, 12 L.R.A., N.S., 298; Bagwell v. Hinton, 205 S.C. 377, 32 S.E.2d 147.

In the case of Fouche v. Royal Indemnity Co. of New York, 217 S.C. 147, 60 S.E.2d 73, 75, this court said:

"When it appears affirmatively on the face of the record that an infant has not been served with summons, the infant is not bound by the proceedings. Bailey v. Bailey, 41 S.C. 337, 19 S.E. 669, 728, 44 Am.St.Rep. 713. If the record is silent as to such jurisdictional matters with respect to a court of general jurisdiction, it will be presumed that what ought to have been done was done; but, when the record discloses the manner in which service on an infant was attempted to be made, there is no presumption that they were served in any other way. Rice v. Bamberg, 59 S.C. 505, 38 S.E. 209. The rule which applies as to courts of general jurisdiction applies also to the court of probate. Thomas v. Poole, 19 S.C. 323; Turner v. Malone, 24 S.C. 398; Hendrix v. Holden, 58 S.C. 495, 527, 36 S.E. 1010 * * *.

"In view of the long lapse of time, the possibility that portions of the record may have been lost or misplaced, and the presumptions that must be indulged wherever the record is silent, we must hold that plaintiffs were parties to the proceedings in the probate court, and were thereby divested of all their interest in the premises. Under this view the circuit court erred in not directing a verdict for defendant and dismissing the complaint in each of the cases."

And again from the Fouch case:

'In our opinion, the want of jurisdiction of the appellants does not affirmatively appear on the face of the record in the probate court. The mere absence from the judgment roll of certain papers which ought to have been made a part of it, and which, if included, would affirmatively show that jurisdiction had been acquired, is not enough to make it affirmatively appear from the face of the record that the court had no jurisdiction of the parties.'

We therefore, conclude that the appellant by showing the mere absence from the judgment roll of an order approving the Bank of Antreville as a depository of the funds in the hands of the guardian was not enough to overcome the presumption that the proceedings in the Probate Court were regular in this particular.

The appellant, by the second question, asserts that the Trial Judge should have directed a verdict for the appellant on the ground that the evidence showed that the guardian was guilty of negligence in the handling of the trust fund.

In the case of Epworth Orphanage v. Long, 207 S.C. 384, 36 S.E.2d 37, 42, this court said:

"The general rule in reference to the accountability of trustees is that they shall use such diligence in the management of the trust fund as a prudent man would do in relation to his own affairs, and that they shall not be charged with loss except for neglect of duty. Turnipseed v. Sirrine, 60 S.C. 272, 38 S.E. 423.' Oakes' Estate v. Oakes, 170 S.C. 167, 169 S.E. 890, 891; International Shoe Co. v. U. S. Fidelity & Guaranty Co., 186 S.C. 271, 195 S.E. 546. In the application of this well established rule it is generally held that if a trustee or other fiduciary in good faith deposits funds of the estate in a bank of good repute and standing and nothing occurs to indicate that the affairs...