Ex parte Wilson

• Decision Date: 08 January 1910
• Citation: 66 S.E. 675,84 S.C. 444
• Parties: Ex parte WILSON. v. GORDON et al. WILSON et al.
• Court: South Carolina Supreme Court

66 S.E. 675

84 S.C. 444

Ex parte WILSON.

WILSON et al. v. GORDON et al.

Supreme Court of South Carolina

January 8, 1910

Appeal from Common Pleas Circuit Court of Abbeville County; J. C Klugh, Judge.

Petition by M. Harvey Wilson, in his own right and as administrator of Jane L. Gordon, deceased, and others, for an order to show cause why the interest of Mrs. Jane W. Crymes in the estate of the deceased should not be applied to the payment of alleged debts due the estate. From a judgment granting the relief, Mrs. Jane W. Crymes appeals. Affirmed.

Martin & Earle, for appellant. Wm. N. Graydon, for respondents.

JONES C.J.

This is an appeal by Mrs. Jane W. Crymes, defendant, from a decree of Judge J. C. Klugh rendered January 30, 1909, upon a petition and rule to show cause why the interest of Mrs. Crymes in the proceeds of land sold as part of the estate of Jane L Gordon, deceased, should not be applied to the payment of certain debts alleged to be due by Mrs. Crymes to the estate of Jane L. Gordon. Mrs. Crymes answered, setting up claim to all the property, real and personal, of Jane L. Gordon under an alleged agreement between Jane L. Gordon and her sister Mary W. Gordon, to execute mutual wills, so that, upon the death of the survivor, the entire property of both should go to Mrs. Crymes and her children. The children of Mrs. Crymes and H. C. Wilson, executor of the will of Mary W. Gordon, were made parties in accordance with the prayer of the answer. The answer further prayed for specific performance of said alleged agreement to execute mutual wills, and that the administrator of Jane L. Gordon be required to turn over all the personal property in his hands, and for all other proper relief in the premises. Special Judge J. E. McDonald sustained the contention of Mrs. Crymes, and adjudged her and her children to be equitable owners of the estate of Jane L. Gordon, and that they were entitled "to an account of the personal estate which has come or may hereafter come into the hands of the plaintiff, M. Harvey Wilson, as administrator of the estate of Jane L. Gordon, deceased." It thus appears that, at the instance of Mrs. Crymes, the scope of the original action was so enlarged, as that it would not be improper to include adjustment of her indebtedness to the estate of Jane L. Gordon sought to be partitioned. On appeal to the Supreme Court, the decree of Judge McDonald was reversed and the case remanded for further proceedings consistent with the opinion of the court. 73 S.C. 155, 53 S.E. 79. The lands were afterwards sold, and the proceeds went into the the hands of the master. By a subsequent decree of Judge Purdy, other claimants as ultimate remaindermen under the eighth clause of the will of R. C. Gordon were made parties and their rights adjudicated, resulting in holding the administrator of Jane L. Gordon liable to account to such claimants for proceeds of certain household articles that went into his hands as administrator (81 S.C. 412, 61 S.E. 85, 62 S.E. 593), showing the broad scope which this case has assumed. The decree of Judge Purdy, from which Mrs. Crymes did not appeal, also directs the master to hold the one-twelfth interest of Mrs. Crymes in the proceeds of the land subject to the further order of the court, and recites that a petition has been filed seeking to subject such interest to the payment of an alleged debt, and allowing the petitioners to proceed herein to establish said claim and apply for such orders as may be necessary or proper. From the foregoing statement it seems clear that the judgment of the circuit court should not be disturbed on the ground that the relief granted was not within the scope of the action. In re Estate of Permelia Bugg, 71 S.C. 440, 51 S.E. 263.

The contention that the establishment of the claim against appellant was a denial of the right of a trial before a jury cannot be sustained. This was not "an issue of fact in an action for the recovery of money only or of specific real or personal property" requiring trial by jury, but was a strictly equitable issue, involving the ascertainment of the extent of the right of an estate under settlement to retain from appellant's interest therein the amount due by her to the estate. Hughes v. Kirkpatrick, 37 S.C. 169, 15 S.E. 912; Jenkins v. Jenkins, 83 S.C. 537, 65 S.E. 736.

The petition alleged, and the testimony shows, that immediately after the death of Mrs. Jane L. Gordon appellant took possession of a note dated February 20, 1895, purporting to be executed by H. C. Wilson & Co. for $1,367.46, payable one day after date to the order of Jane L. Gordon, and it appears that she kept said note in her possession until the hearing in this proceeding. Judge Klugh found as matter of fact that appellant was a member of the partnership of H. C. Wilson & Co. and liable for the balance which he ascertained to be due on said note after credits at the date of his decree, viz $1,676.22. Exception taken to the ascertainment of the amount due on the note has been withdrawn, but it is contended that the finding that appellant was a member of the said partnership is without sufficient evidence to sustain it. After reviewing the testimony, we cannot say that the conclusion of the circuit court is against the preponderance of the evidence. Appellant in her direct testimony stated that she and H. C. Wilson, her son-in-law, never had a partnership contract, verbal or written, that she put no money in the business of H. C. Wilson & Co., received no profits, and was not called on to pay any losses. On cross-examination in answer to the question, "Who composed the firm of H. C. Wilson & Co.?" she answered: "I don't know exactly. He may have used my name. The supposition was that I was a member of the firm of H. C. Wilson & Co." There was uncontradicted evidence that the day after the burial of Jane L. Gordon appellant told witness W. J. Milford "that she had her note," and the testimony shows that there was no other note signed by appellant or H. C. Wilson & Co. In a letter to the administrator appellant wrote: "So I told Mr. Milford I would take the note (I didn't steal it), and he might tell the administrator about it whoever he may be." The solicitude of appellant to secure possession...