Hunter v. Hunter

• Decision Date: 11 March 1902
• Citation: 41 S.E. 33,63 S.C. 78
• Parties: HUNTER et al. v. HUNTER et al.
• Court: South Carolina Supreme Court

41 S.E. 33

63 S.C. 78

HUNTER et al. v. HUNTER et al.

Supreme Court of South Carolina

March 11, 1902

Appeal from common pleas circuit court of Laurens county; Benet Judge.

Action by Eugene S. Hunter and others against Nannie W. Hunter and others. Judgment for plaintiffs, and defendants, except Nannie W. Hunter, appeal. Modified.

The following is the circuit decree:

"In pursuance of the order of the supreme court, all of the defendants, except Nannie W. Hunter, amended their answer so as to set up the claim that they were entitled to be subrogated to the rights of such creditors of S. M. Hunter as were paid out of the proceeds. The case then came on for trial before this court on October 19, 1900. I have carefully considered the testimony that was introduced in this case and I find that these defendants have failed to make good this claim. It is true that they introduced evidence going to show that certain debts of S. M. Hunter, deceased, were paid out of the proceeds, but all of these were at the time of their payment barred by the statute of limitations. They were promissory notes which S. M. Hunter had signed as surety some time previous to the year 1876, whereas they were not paid until the year 1885; and the testimony offered by these defendants shows that in the meantime S. M. Hunter had made no payments upon these notes, or otherwise acknowledged the same as subsisting liabilities. The executrix was not permitted to pay any debts which are barred, and, if she has paid any debts out of any funds lawfully in her hands, it would have been a devastavit. These debts, as to the devisees under the will of S. M. Hunter, were all discharged, under the law, and could not have been asserted against them. No payments made by the principal upon these notes would arrest the statute of limitations as to the surety. Walters v. Kraft, 23 S.C. 585, 55 Am. Rep 44. The acknowledgment by the executrix of these debts as liabilities would not bind the estate, and any payment made by her upon such debts would not be allowable in an accounting with them. This position is fully sustained by the following authorities: Bird v. Houze, Spear, Eq. 255; Gilliland v. Caldwell, 1 S. C. 197; McKinlay v. Gaddy, 26 S.C. 573, 2 S.E. 497. These defendants have asked to be put in the place of those creditors who were thus paid, and be substituted to the rights of such creditors; but it appears from their own showing that these creditors were not entitled, as against the plaintiffs, to subject the land in controversy, and they have therefore failed to make good this claim. 24 Am. & Eng. Enc. Law, 322; Harris, Subr. 830-833. It is therefore ordered, decreed, and adjudged that the claim made by all the defendants, except Nannie W. Hunter, that they are entitled to be subrogated to the rights of the creditors of S. M. Hunter, deceased, be, and the same is hereby, disallowed.

It now becomes necessary to make such administration order as is proper under the holdings of the court. Under the decision of the supreme court, the deeds made by the defendant Nannie W. Hunter, purporting to be under a power contained in the will of S. M. Hunter, deceased, did not convey the interests of the plaintiffs herein. But such interest as Mrs. Hunter had in the said lands were transferred to the grantees, respectively. The will gave to Nannie W. Hunter the tract of land described in the fourth paragraph for the term of her life, the proceeds from the rents and the use of the land to be devoted to the support of herself and children, to wit, the plaintiffs herein, and to their education. By the deeds so made, Nannie W. Hunter devested herself of any interest in this land, and violated the trust imposed upon her by the will. It thus becomes necessary to appoint another trustee, who is during her lifetime to hold the legal title of said lands in trust for the plaintiffs herein, and for the assignees of Mrs. Hunter's interest. Inasmuch as no basis for the division of the rents and profits has been furnished the court, equity will follow the rule of equality, and during the life of Mrs. Hunter will divide the profits arising from the rents and profits of said lands equally among the plaintiffs and the assignees of Nannie W. Hunter; the plaintiffs receiving each one-sixth, and the assignees of Nannie W. Hunter together one-sixth. It is therefore ordered, decreed, and adjudged that the trustee hereinafter to be appointed shall take into his possession all of the lands described in the complaint, and that he shall hold the same to himself during the lifetime of Nannie W. Hunter; that, in the exercise of his powers, he shall lease and rent out the said lands, and after paying all taxes, insurance, and necessary expenses for repairs, he shall divide the surplus into six equal parts, one part of which shall be paid to each of the plaintiffs, or to their assignees, and the other part, to wit, one-sixth, shall be paid to the assignees of Nannie W. Hunter. The trustee may at any time apply to this court, at the bottom of this order, for any instructions as to his duties, and for any aid in getting possession of said land. The one-sixth to which the assignees of Nannie W. Hunter are entitled shall be divided as follows, to wit: *** It is further ordered that John F. Bolt, as clerk of the court, until the further order of this court, be, and hereby is, appointed the trustee of said land, and that he be allowed as compensation 2 1/2 per cent. on all amounts collected, and 2 1/2 per cent. on all amounts paid out. The appointment of a permanent trustee is reserved. It is further ordered that the trustee or any of the parties hereto may apply, at the bottom of this decree, for any further order that may be necessary to carry out the terms of this decree. It is further ordered that the defendants herein do account to the plaintiffs for the five-sixths of the rents and profits which they have heretofore received from the said lands, or the value of the use and possession, the portions which they have been respectively holding. At the death of the said Nannie W. Hunter

the trustee's duties will terminate, and he is then to turn over the said lands to the plaintiffs or to their assignees."

From this decree the defendants, except Nannie W. Hunter, appeal on following exceptions:

"(1) Because his honor erred in not holding that, under the judgment of the supreme court herein, the only question before him was to ascertain what amount of the purchase money of the land paid to Nannie W. Hunter, as executrix, should be refunded to the defendants, respectively, in possession of the lands, and that they be allowed to retain their respective parts of the lands until their pro rata part of the purchase money be refunded to them. (2) Because he should have held that Judge Watts' findings that the proceeds of sale of the lands were applied to the debts of S. M. Hunter was a finding unappealed from, that such debts were then subsisting debts against the estate of S. M. Hunter, and that Judge Benet erred in overruling the finding of fact of Judge Watts, that the proceeds of sale were applied to valid debts of S. M. Hunter. (3) Because his honor erred in not holding that the fundamental fact upon which the right of subrogation is based was res judicata, under the findings of fact of Judge Watts, unappealed from, which he found in his decree herein, that the whole of the proceeds of the sale of the lands were applied by the executrix to the payment of debts of S. M. Hunter. (4) He erred in holding that all of the debts of S. M. Hunter were barred by the statute of limitations at the time of their payment by his executrix, Nannie W. Hunter, at time of sale of the land described in the complaint. (5) His honor should have held that the burden of proof was upon the plaintiffs to show by the preponderance of competent testimony that the debts paid out of the proceeds of the land were barred by the statute of limitations. (6) He erred in admitting at the hearing the papers in the case of Samuel F. Vance against Nannie W. Hunter, as executrix, and J. P. Hunter,--the same being no record, but only hearsay, secondary, and declarations in favor of plaintiffs,--and alleged copy of promissory note. (7) He erred in finding that all of the debts of S. M. Hunter paid by the executrix, Nannie W. Hunter, were promissory notes, which S. M. Hunter had signed as surety previous to 1876; that S. M. Hunter had made no payment on these notes, and never acknowledged the same as subsisting liabilities. (8) Because his honor erred in not holding that the burden of proof was upon the plaintiffs to show that the debts of S. M. Hunter, paid by the executrix out of the proceeds of sale of the land, matured before the beginning of the statutory period applicable to said debts; and, there being no such testimony, his honor erred in holding that the debts were barred by the statute of limitations. (9) He erred in not holding that after great lapse of time, death of witnesses, and loss of papers, public policy required and the law presumes that the settlement of debts by the executrix was based upon valid and subsisting obligations of her testator; such settlement being an official act, and prejudicial to her individual rights. (10) Because he erred in holding that these debts paid by the executrix out of the proceeds of sale of the lands of testator were then discharged, under the law, and could not have been asserted against the devisees of testator. (11) He erred in holding that the testator, S. M. Hunter, was surety on the debts paid by executrix, and that the payments thereon were made by the principal, and not the surety. (12) He erred in holding that the creditors of S. M. Hunter, whose debts were paid by executrix, had no right to subject

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