Kinsler v. Holmes
| Decision Date | 08 August 1871 |
| Citation | 2 S.C. 483 |
| Parties | KINSLER v. HOLMES. |
| Court | South Carolina Supreme Court |
Three devisees of a tract of land, who were, also, named as the executors of the will, and two of whom had qualified as executors, established a ferry on the devised tract, under a charter granted to them by the State, at a place where a river formed one of the boundaries of the tract. There were unsatisfied judgments against the testator, to a considerable amount, besides other debts, and his estate proved to be insolvent. On bill to marshal the assets: Held That the executors were not bound to account to creditors for the profits of the ferry.
Devisees of an insolvent testator are not liable to creditors of the estate for rents and profits during their possession before sale.
Lapse of twenty years, with other circumstances: Held , To raise the presumption that a judgment was satisfied, although during five of the twenty years the stay law was of force and war existed.
Under a bill to marshal the assets of an insolvent estate, a debt contracted by the executors, cannot be proved as a claim against the estate. [a]
A sum paid by executors to a watchman for guarding real estate of the testator, under a contract with the executors, will not be allowed as a disbursement against judgment creditors of the testator— semble .
BEFORE HON. JAMES H. RION, SPECIAL JUDGE, AT COLUMBIA, JANUARY 1871.
John J. Kinsler died in January, 1865, leaving a last will and testament, of which his three brothers, Edward Kinsler, Henry O. Kinsler and William Kinsler, were nominated executors. The two former proved the will and qualified as executors. The testator left very little, if any, personal estate, but a considerable amount of real estate, consisting of about twenty lots in the city of Columbia, other lands in Richland County, including a tract near Columbia, on the east bank of the Congaree River, known as the Brick Yard, and lands in Lexington County, among them a tract known as the Percival land. The will contained a residuary clause, by which the testator devised the residue of his real estate to his three brothers above named, and under this clause they became seized, as tenants in common, of the brick yard tract.
At the fire which destroyed the principal part of Columbia, in February, 1865, when General Sherman's army occupied the city, the buildings of the testator, on his lots, were burned.
In December, 1865, the three residuary devisees petitioned the Legislature of the State to grant them a charter for a ferry over the Congaree, at the brick yard, stating, as one of the grounds of their application, their ownership of the soil on the east bank of the river, where the landing on that side would be. The Legislature granted them the charter, and the ferry was established and went into operation.
The bill, in this case, was afterwards exhibited by the two qualified executors against Mary Holmes, a judgment debtor of the testator, and William Kinsler and other his devisees. The bill was for administration of the estate. It alleged the insolvency of the testator, and prayed the usual decree for sales of the real estate, and for calling in creditors to prove their debts.
Under a decree in the cause, the real estate was all sold in December, 1868, and April and June, 1869. The proceeds of all the sales, except that of the Percival land, amounted to $54,111.16. The Percival land was sold to William Kinsler for $2,403.35, and his bid was paid by crediting the same on his mortgage, hereinafter more particularly mentioned.
By an order made in June, 1867, it was referred to a Referee, to call in creditors, and report on their claims, and to take and state the accounts of the executors. Eleven judgments and four tax executions against the testator, dating from February, 1849, to October, 1861, and amounting, in the aggregate, to a large sum, were proved before the Referee. Two mortgages, one in favor of William Kinsler, on the Percival land, and one in favor of George Kaigler, for $6,000, on a lot called the Jordon lot, besides specialty and simple contract debts, were also proved. The only disputed matters were the three to be now mentioned:
1. It was contended, on behalf of some of the creditors, that the devisees of the brick yard took the charter of the ferry, which was granted to them by the State because they were the legal owners of the soil, as trustees, for the benefit of the creditors, and that the executors were liable to account for the rents and profits. This position was sustained by the Referee, and he recommended that the franchise of the ferry " be sold, and that the executors be required to account for the rents and profits, as assets to which the creditors were entitled."
2. William Kinsler presented a claim against the estate for $1,846.65, being the balance alleged to be due to him on a bond of the testator for $8,000, conditioned for the payment of $4,000, to secure which the mortgage above mentioned of the Percival land had been given. The bond and mortgage bore date the 27th September, 1848, and, as already intimated, the claim, so far as the mortgage was concerned, was not disputed, and he had received the benefit of his mortgage lien by his purchase of the Percival land. What he now claimed was that he was entitled to rank as a judgment creditor for the balance of his debt. Under the original order made in the case, the time allowed creditors to present their claims expired on the 1st January, 1868, and this claim to rank as a judgment creditor was not presented until the 20th October, 1868, after an order to extend the time had been made on the application of this claimant.
To establish this claim, it was proved that the records of the office of the Clerk of the Court of Common Pleas for Richland were burned in February, 1865, and a certificate of the Clerk of said Court was produced and received in evidence, which stated as follows: " Abstract of judgment in the case of John Bryce and Catharine McFie, administrators of J. McFie vs. John J. Kinsler, to wit: Judgment for plaintiffs, Fall Term, 1848, for $2,500; interest on $2,500 from 1st January, 1849; date of substitution, November 16, 1868; fi. fa. issued 20th November, 1868, as of the ____ day of October, 1848."
William Kinsler testified that the indebtedness of John J. Kinsler to him arose in the following manner: That Daniel Kinsler, as principal, with the witness and John J. Kinsler as sureties, was indebted to the administrators of McFie by bond, in the sum of $5,000; that the bond was put in suit, and he (the witness) then paid one-half the debt, with the accrued interest, in cash, and the other half, $2,500, by giving his bond, with Frost and Shuler as sureties; that he afterwards paid this last mentioned bond; that the payment to the administrators of McFie was made before their judgment was recovered; that the judgment was for $2,500, and was against himself and John J. Kinsler; that the mortgage of the Percival land was given to secure witness against his liability on the bond to the administrators of McFie; did not know why it was given for $4,000.
It appeared by a return of the administrators of McFie, filed in the Ordinary's office, February 9th, 1849, that the bond of Daniel Kinsler, John J. Kinsler and Wm. Kinsler, for $5,000, had been paid as follows:
| 1848. |
| July 1. | By 20 shares Bank of Hamburg, $50 | $1,000 00 |
| By cash | 1,608 00 |
| By bond of William Kinsler, J. D. Frost, J.Shuler | 2,500 00 |
| By J. J. Kinsler's note, endorsed by J. D.Frost | 180 57 |
| $5,288 57 |
| Principal of bond | $5,000 | 00 |
| Interest to time of payment | 288 | 57 | $5,288 57 |
It was admitted that Wm. Kinsler had been in possession of the Percival land for nineteen years, and the balance claimed by him was ascertained as follows:
| Debt | $2,500 00 |
| Interest for 20 years | 3,500 00 | — $6,000 00 |
| Deduct rent of Percival land | 1,750 00 |
| Bid for Percival land | 2,403 35 | — 4,153 35 |
| Balance | $1,846 65 |
The Referee rejected the claim of Wm. Kinsler to rank for this balance as a judgment creditor, on the grounds: 1. That the evidence was insufficient to establish the fact that the alleged judgment was recovered; and, 2. That, if it was recovered, it must be presumed to be satisfied.
3. J. B. Gibson presented a claim against the estate as follows:
Edward and Henry O. Kinsler, Executors of John J. Kinsler, deceased, to J. B. Gibson,
| DR. |
| 1868. |
| October | 21. | To service as guard and watchman over the property of the estate of John J. Kinsler, deceased, commencing July 13, 1866, making to this date 831 days, at $2 per day, by contract | $1,662 | 00 |
| CR. |
| By cash of executors at sundry times | 177 | 50 |
| Balance | $1,484 | 50 |
To sustain this claim the following witnesses were examined:
Edward Kinsler sworn, says:
As one of the executors of the estate of J. J. Kinsler, I employed Mr. James B. Gibson to act as a guard over the property of the estate; we saw that bricks were being stolen in Columbia fences burnt and iron stolen, and wood being cut on the property of the estate, and as the executors lived five or six miles in Lexington District, it was thought expedient to employ a watchman to protect the property. The wood was mainly cut from the brick yard property in Richland District, and in the sand hills in Richland. My brother, the other executor, also lived with me in Lexington. He agreed to give Mr. Gibson $2 per day for his services. Could not get reliable men to do the same duty for less. Mr. Gibson commenced his duties in the summer of 1866, and continues to be so employed up to the present...
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