Foster v. Pruitt

• Decision Date: 11 January 1933
• Docket Number: 13554.
• Citation: 167 S.E. 410,168 S.C. 262
• Parties: FOSTER v. PRUITT et al.
• Court: South Carolina Supreme Court

167 S.E. 410

168 S.C. 262

FOSTER v. PRUITT et al.

No. 13554.

Supreme Court of South Carolina

January 11, 1933

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by John L. Foster, as administrator of the estate of Russell Pruitt, deceased, against Susan Pruitt and others. From an order of the court of common pleas reversing an order of the probate court, defendant named appeals.

Order of the court of common pleas reversed, and order of the probate court affirmed.

The order of the court of common pleas, Sease, J., was as follows:

This cause was originally brought in the probate court for Spartanburg county by John L. Foster, as administrator of the estate of Russell Pruitt, against Susan Pruitt and others. Susan Pruitt is the widow of Russell Pruitt, deceased, and the other defendants, except the defendant Mrs. L. W. Foster are his brothers. The defendant Mrs. L. W. Foster holds a mortgage over the interest of Susan Pruitt in the estate of her deceased husband.

This action was brought by the administrator in aid of assets, the complaint alleging, and the proof amply proving, that the personal estate was exceedingly small, and that most of the debts would have to be paid, if paid at all, out of a small tract of land in Spartanburg county. The petition for the sale of the land showed all the facts above alleged and prayed the court for an order of sale of the real estate for the purpose of paying the debts of the deceased. The defendant Susan Pruitt was personally served, made default and a decree of the probate court was duly rendered ordering a sale of the property and the payment of the proceeds thereof, after costs and expenses to the administrator, John L. Foster, for the payment of debts.

When the parties herein appeared before the probate court for the purpose of having a settlement and using these funds which were in the hands of the probate court, realized from the sale of the land, attorneys for Susan Pruitt asserted her claim for such proceeds under the homestead laws of the state. After argument, the probate court held that Susan Pruitt, notwithstanding the fact that she was a party to the cause in which the land was sold, and notwithstanding the fact that she had made default, was still entitled to her homestead, and ordered the proceeds, after payment of necessary costs of sale and attorney's fees, turned over to her or her attorneys.

From the judgment of the probate court, an appeal was taken to this court. Attorneys for respondent in a written brief cite only the case of McMaster v. Arthur, 33 S.C. 512, 12 S.E. 308, and base their argument upon it. The quotation in the brief is from the majority decision rendered by Chief Justice Simpson. The attorneys for appellant cite two cases; namely, Culler v. Crim, 52 S.C. 574, 30 S.E. 635, and more specially the recent case of Haddon v. Lenhardt, 54 S.C. 88, 31 S.E. 883. This latter case expressly overrules the case of Ex parte Strobel, 2 S.C. 309, upon which the decision of the majority of the court in McMaster v. Arthur was based, and adopted the dissenting opinion of Mr. Justice McIver rather than the majority decision of Chief Justice Simpson, thus practically overruling the case of McMaster v. Arthur.

This case, then, as I conceive it, is settled by the cases cited by appellant's counsel. The plaintiff herein asks that the proceeds be applied to the payment of debts. The respondent herein made default, and the court adjudicated that the proceeds should be so applied. It would seem, then and it is so decided, that the probate judge was wrong in his conception of the law, and that the debts under the circumstances have a prior claim to that of homestead. I quote in support of this view from the case of Haddon v. Lenhardt: "We are unable to see...