Kilgore v. Moore

• Decision Date: 09 October 1869
• Parties: JAMES S. KILGORE AND OTHERS v. JOHN MOORE AND OTHERS.
• Court: South Carolina Supreme Court

1 S.C. 192

JAMES S. KILGORE AND OTHERS v. JOHN MOORE AND OTHERS.

Supreme Court of South Carolina.

October 9, 1869

F. H and K. were joint administrators of S., against whose estate there were certain claims by promissory notes, drawn by S and endorsed by K. It was agreed among the executors to pay these notes in full out of the assets of S., and if they should prove insufficient for that purpose, that K. should make good the deficiency. It turned out that the assets were insufficient to pay simple contract debts in full Held , That, as between the administrators, K. was liable, on his agreement, to make good the deficiency.

BEFORE JOHNSON, CH., AT NEWBERRY, APRIL, 1868.

This was a creditors' bill for administration of the personal estate of James Kilgore, deceased.

Simeon Fair and Peter Hair presented a claim against the estate which arose out of the following circumstances: They and James Kilgore were joint administrators of John W. Summers, deceased. Shortly after the death of Summers, some promissory notes, held by an incorporated Bank, which had been drawn by him and endorsed by Kilgore, were presented for payment, and it being doubtful whether the assets of Summers were sufficient to pay simple contract creditors in full, it was verbally agreed, between the three administrators, to pay the notes in full, and if it should turn out that the assets were insufficient for that purpose, then, that Kilgore should make good the deficiency. The notes were accordingly paid out of the assets of Summers, and it turned out, when his estate was finally wound up by Fair and Hair, as surviving administrators, Kilgore having died in the meantime, that the assets were insufficient to pay the promissory notes by about 35 per cent., and Fair and Hair claimed that the deficiency should be paid out of the assets of Kilgore's estate.

The Commissioner, to whom it had been referred to take an account of the debts of Kilgore, rejected the claim, and reported against it, but, on exception taken to the report, His Honor ruled that the claim was entitled to payment, and he so decreed.

The plaintiffs appealed, and now moved this Court to reverse the decree of His Honor, and confirm the report of the Commissioner.

Baxter , for the motion.

Garlington , contra.

OPINION

MOSES C. J.

To meet the question presented to the Court in this case, it is not necessary to inquire whether, in the absence of the...