Fouche v. Royal Indem. Co. of N.Y.

• Decision Date: 13 June 1950
• Docket Number: 16369.
• Citation: 60 S.E.2d 73,217 S.C. 147
• Parties: FOUCHE et al. v. ROYAL INDEMNITY CO. OF NEW YORK.
• Court: South Carolina Supreme Court

60 S.E.2d 73

217 S.C. 147

FOUCHE et al. v. ROYAL INDEMNITY CO. OF NEW YORK.

No. 16369.

Supreme Court of South Carolina.

June 13, 1950

Carlisle, Brown & Carlisle, Spartanburg, for appellants.

William S. Hope, Charleston, T. B. Bryant, Jr. Orangeburg, for respondent.

FISHBURNE, Justice.

The plaintiffs, who are sisters seek to recover the sum of $14,786.47, with interest, upon a surety bond executed by the Royal Indemnity Company of New York on September 18, 1925. The bond, in the sum of $125,000, was given to qualify Parnell Whaley, mother of the plaintiffs, as administratrix of the estate of V. T. Whaley, their father, in the Probate Court of Orangeburg County.

Plaintiffs allege that their mother, the administratrix, in her final accounting, wrongfully took credit for two items totaling the amount sued for, comprising, (1) Commissions in the sum of $5,586.47, to which she was not entitled because of her failure to file annual returns; (2) The sum of $9,200 representing $200 per month for forty six consecutive months for the care and support of herself and her two children, the plaintiffs herein, during the period covered by the administration.

This case has heretofore been on appeal to this court, as will appear from the report of Fouche v. Royal Indemnity Company of New York, 212 S.C. 194, 47 S.E.2d 209. The former appeal involved questions of venue, parties and pleadings. The effect of the judgment rendered left the answer admitting the execution of the bond as surety for the administratrix, but denying generally all the allegations with reference to the taking of wrongful credits.

A consent order was passed, referring the cause of the master of Orangeburg County to take the testimony and pass upon all of the issues. While the cause was before the master, a motion was made by the defendant which in effect set up the defense that under Section 213 of the Code relating to the discharge of administrators, the judgment of the probate court of Orangeburg County discharging the administratrix constituted a bar to this action. The order of the probate court provided: 'That the said Parnell Whaley be and hereby is from henceforth and forever, discharged and dismissed from all liability as administratrix as aforesaid, and from any other or further accounting concerning the said estate.'

The controversy in this cause arose out of the following facts: In September 1925, V. T. Whaley, a resident of Orangeburg County, died intestate, leaving the plaintiffs and their mother, Parnell Whaley, as his only heirs and distributees. The older of the plaintiffs was four years of age at the time of her father's death, and the younger was born three months thereafter, in December, 1925. V. T. Whaley left a large estate, consisting of personal assets having a face value of $166,927.90; and approximately 2,300 acres of land divided into fourteen tracts, and a number of lots, all appraised at $82,050. The administration of the estate resulted in much litigation; the final settlement was made by the administratrix, and her discharge was granted by the Probate Court in September, 1929. She died about one year thereafter.

The special referee held in effect, that the plaintiffs were not made parties to the application for discharge; hence, they were not barred by Code Section 213. He further found and reported that the administratrix filed only two returns: one on July 29, 1929, designated 'Final Account,' and the other on September 20, 1929, designated 'Supplementary Final Account.' He held that inasmuch as the administratrix had failed to file annual returns as required by the applicable statute (Code Sec. 9012), she was not entitled to commissions, except on the disbursements appearing in the supplementary return, including the amounts shown therein as paid to the plaintiffs on their shares. With reference to the credit taken by the administratrix in the sum of $9,200 for the support of herself and her two minor children during he time the estate was in process of administration, the master held that this was a proper and lawful disbursement, and reasonable in amount.

When the cause came on to be heard in the circuit court, upon exceptions filed by the plaintiffs and the defendant, the court rendered its judgment holding that the action of the plaintiffs was barred by Section 213 of the Code. It was adjudged that the discharge granted by the probate court of Orangeburg County, constituted a final adjudication that the administratrix had administered the estate in accordance with law, and that the plaintiffs are bound thereby. The circuit court also held adversely to the contention of the plaintiffs with reference to the claims for commissions and for support.

The appellants, plaintiffs below, now seek by this appeal to reverse the judgment of the lower court.

The trial court held that the action of appellants constituted a collateral attack upon the judgment of the probate court, which approved the final accounting of the administratrix and passed an order granting her a discharge. And, further, that the order of discharge was not void on its face, nor did the judgment roll affirmatively disclose that the court was without jurisdiction of the appellants. We will first consider the exception relating to this issue.

The appellants allege in their complaint that they were not parties to the proceeding in the Probate Court in which the letters dismissory were issued, that no guardian ad litem was appointed for either of them prior to the discharge of the administratrix, and hence the probate court did not have jurisdiction of them. In support of this contention, attention is called to the fact that the judgment roll in the probate court contains no petition for the appointment of guardians ad litem, and no order making such appointment.

The record of the probate court introduced in evidence, shows that the notice of final settlement was duly published as required by Section 213 of the Code, for the period of one month, to the effect that on a day certain application would be made to the probate court for a final discharge. In the order of discharge it is recited that the administratrix presented her petition setting forth that the duties of the administratrix had been fully discharged, and praying leave to submit her final account. Prior to the discharge, the Edisto National Bank of Orangeburg was appointed as general guardian of the appellants, and receipted for their shares. The final discharge was granted as advertised in the notice, in September, 1929. No petition for the appointment of guardians ad litem for the appellants, nor any order appointing such guardians were found in the judgment roll. As to this, the record is silent.

As pointed out in the decree of the circuit court, there are three ways of attacking a judgment: (1) Collaterally; (2) Directly, by a motion in the cause between the same parties; (3) An action in equity upon equitable grounds. Scott v. Newell, 146 S.C. 385, 144 S.E. 82.

There can be no doubt that the action of the appellants constitutes a collateral attack on the judgment of the probate court approving the final accounting of the administratrix and granting her a final...