Fricks v. Lewis

• Decision Date: 08 March 1887
• Citation: 1 S.E. 884,26 S.C. 237
• Parties: Fricks and another v. Lewis, Adm'r, etc.
• Court: South Carolina Supreme Court

1 S.E. 884

(26 S.C. 237)

Fricks and another

v.Lewis, Adm'r, etc.

Supreme Court of South Carolina.

March 8, 1887

1, Limitation of Actions — Trusts — Administrators — Application for Discharge.

Where an administrator, after properly advertising his intention to apply to the judge of the probate court, in South Carolina, for a final settlement and discharge, obtains an order for distribution and discharge, such order will be regarded as a throwing off of the trust, which will give currency to the statute of limitations.

2. Same—Disability—Infancy.

Under section 122 of the South Carolina Code of Procedure, relating to the limitation of actions, the period of six years within which persons sui juris may bring certain actions is extended, as to infants who are still in their minority at the expiration of such six years, to one year only after the minor becomes of age and the disability ceases.

McIver, J. Prior Alexander, Sr., died intestate in 1870, and his son E. B. Alexander administered on his estate. On the thirtieth of October, 1871, after advertising, for one month in the county newspaper, notice of his intention to apply, on that day, to the judge ofprobate for a final settlement and discharge, he obtained an order to pay out the balance in his hands to three of the distributees, not including these plaintiffs, on the ground that the other distributees had received advancements from the intestate to the full amount of their shares, and that, therefore, he be discharged from his trust. To this proceeding, these plaintiffs, who were both minors at the time, were not parties, and do not appear to have had any actual notice of it. E. B. Alexander died intestate in 1878, and the defendant, Lewis, on the eighteenth of January, 1879, duly qualified as his administrator. Before the commencement of this action the defendant had administered all the assets of his intestate's estate, without notice of this claim of the plaintiffs, except the sum of $32.64. On the twenty-fourth of January, 1885, this action was commenced for the recovery of $129.75, one-fifth of the net estate of Prior Alexander, Sr., in the hands of E. B. Alexander, as his administrator, on the thirtieth of October, 1871, with interest from that date. The defendant relies upon three defenses: (1) That the father of the plaintiffs, through whom they claim, was fully advanced by his father, Prior Alexander, Sr., in his life-time; (2) that the plaintiffs are barred by the statute of limitations; (3) plene administravit prater the sum above stated.

The referee to whom the issues were referred reported against the defendant on his first defense, but found that the claim was barred by the statute of limitations, and therefore recommended that the complaint be dismissed. Upon exceptions to this report, the circuit judge reversed the referee as to the statute of limitations, and, sustaining the report in other respects, rendered judgment for the plaintiffs, subject to the plea of plene administravit prceter. From this judgment defendant appeals, substantially upon the ground of error in overruling his plea of the statute.

The solution of the question presented by this appeal depends upon the answer to two inquiries: (1) Was the order of final discharge, obtained by E. B. Alexander as administrator of Prior Alexander, Sr., from the judge of probate, on the thirtieth of October, 1871, such a throwing off his trust as would give currency to the statute? (2) If so, has a sufficient time elapsed since that date to complete the bar of the statute as to these plaintiffs, who were then minors?

It seems to us that the authorities in this state require that the first question shall be answered in the affirmative. Payne v. Harris, 3 Strob. Eq. 42; Pettus v. Claivson, 4 Eich. Eq. 101; Brockington v. Camlin, 4 Strob. Eq. 196. The cases of Biddle v. Riddle, 5 Eich. Eq. 37; Renwick v. Smith, 11 S. G. 303; Dickerson v. Smith, 17 S. C. 305, —cited by the counsel for respondent in opposition to this view, — do not sustain his position. In Riddle v. Riddle there was no settlement. of the estate, and nothing that purported to be so. The act relied upon there was simply an ex parte return made by the administrator, — as the court says, "his first and only return, "—and this was certainly no indication that the administrator thereby intended to throw off histrust. On the contrary, it was simply the performance of a duty which the law requires the administrator to perform annually, as long as he continues in office as such, and certainly afforded no evidence whatever that he claimed to have discharged his whole trust and duty. The case of Renwick v. Smith seems to have rested mainly upon that of Riddle v. Riddle, supra; but Willard, G. J., in delivering the opinion of the court, expressly admits that "the currency of the statute does not necessarily depend upon the fact of a full and final dischargex of the duty of the administrator. It commences to run when it appears that the administrator has done some act, brought to the notice of the parties affected by it, equivalent to an abandonment of such office, although such act may be in itself wrongful. But the case before us presents no such state of things." In the case of Dickerson v. Smith, the settlement relied on "was, at most, only a partial settlement, * * * and left in the hands of the executors a large amount of assets for future administration." So that it was clear, under the view which the court took of that settlement, there was nothing to indicate that the executors thereby intended to throw off their trust; and accordingly the court used this language: "It is only when a fiduciary really lays aside his trust, or does some act manifesting clearly his intention to do so, that the statute begins to run against the trustee of an express trust." The cases of Long v. Cason, 4 Eich. Eq. 60, and Sollee v. Croft, 7 Rich. Eq. 34, also cited by respondent's counsel, seem to us to support the view which we have adopted, rather than that contended for by respondent.

It is insisted, however, that it was necessary to show that notice of this final settlement should have been brought home to these plaintiffs before it could be relied upon as a starting point for the statute of limitations. But we think that the cases above referred to show that acts done in a public office, open to the inspection of all, are notice to all who may be interested. To use the language of Johnston, Ch., in Payne v. Harris, supra, adopted in Pettus v. Clawson, supra, Long v. Cason, supra, and others: "An act done in a public office, open for the information of parties interested, must be taken notice of by them." Now, in this case, the administrator, on the thirtieth of October, 1871, undoubtedly intended to make, and did make, a final settlement of his intestate's estate, and unquestionably intended thereby to discharge himself of his trust. This was an act...