Long v. Lea

• Decision Date: 07 August 1935
• Docket Number: 14120.
• Citation: 181 S.E. 6,177 S.C. 231
• Parties: LONG v. LEA et al.
• Court: South Carolina Supreme Court

181 S.E. 6

177 S.C. 231

LONG v. LEA et al.

No. 14120.

Supreme Court of South Carolina

August 7, 1935

Appeal from Common Pleas Circuit Court of Beaufort County; G. B Greene, Judge.

Suit by Lilla L. Long against Eva Lea and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

George W. Beckett, of Beaufort, for appellant.

Thomas & Thomas, of Beaufort, for respondents.

FISHBURNE Justice.

Captain Peter L. Lea died on November 27, 1922, leaving his last will and testament, which was duly admitted to probate in Beaufort county, the place of his residence. On April 5, 1923, on the petition of his widow, the respondent Eva Lea, she, together with Hampton K. Lea and James M. Lea, named in the will as executrix and executors, qualified as such, and entered upon the discharge of their duties.

Thereafter in March, 1924, Hampton K. Lea and James M. Lea made their final returns as executors, which were approved by the probate court, and under the order of said court they were discharged. On September 12, 1927, Eva Lea made her final return, applied to the probate court for Beaufort county for her discharge as executrix, and on November 10, 1927, an order was issued by the probate court discharging her as executrix.

Under the terms of the will of Peter L. Lea, after leaving a home and other property to his daughter, the appellant, Lilla L Long, and a home to his wife, the respondent Eva Lea for her life, with remainder to her two children, all of the personal estate of the testator, amounting to approximately $15,000, was left to his wife, the said Eva Lea, during her life, she to use the income from same for the support of herself and her two children, and after her death it was provided that the personal estate be divided among testator's three children, share and share alike.

Peter L. Lea was married twice. He left surviving him his widow, Eva Lea, and their two children, Eva Hampton Lea and Peter L. Lea, Jr., and his daughter by his first marriage, Lilla L. Long, the appellant herein. The three children above named are the sole remaindermen who are to share and share alike under the will.

This action is brought by Lilla L. Long alone, the other two children having been made parties defendant.

The fifth and eighth paragraphs of the will, which are pertinent to the issues raised in this action, are as follows:

"Fifth: All the residue and remainder of my property I desire to stay in tact during the life of my dear wife, Eva, and that she use the income from same or so much thereof as may be necessary for the support and comfort of my said dear wife and children and therefore with this end in view I hereby give and bequeath unto my dear wife Eva and during her life all of said property with full power to use all the income from same or as much as may be necessary for the use and support and comfort of herself and her children."

"Eighth: All the rest and residue of my property after the death of my said wife I desire to go to and be the property of all my children share and share alike absolutely."

This action was brought by the plaintiff on the equity side of the court to require the life tenant, Eva Lea, to account for the corpus of the estate; the plaintiff alleging waste, mismanagement, and the sale and conversion of a portion of the corpus to her own use, and asking for the appointment of a trustee for said estate, or the giving of a bond by the life tenant for the protection of the remaindermen, or at least for the protection of the petitioning remainderman, it being alleged that the corpus of the life estate is in grave danger of loss and destruction through the fraud and mismanagement of the life tenant.

The answer denied the material allegations of the complaint, and alleged, among other things, that in her annual and final returns made to the probate court of Beaufort county, as executrix of the estate, she misunderstood the instructions of her legal adviser and her coexecutors, and, being unfamiliar with bookkeeping, she mingled her private income derived from property individually owned by her with that coming into her hands as executrix, and she asked the court to review her returns as executrix and allow her to eliminate from said returns those items representing her own money which were erroneously listed, with the view of ascertaining what she is properly chargeable with as executrix and life tenant of said estate, and what she has properly paid out for said estate. By her answer the defendant respondent joined in that part of the prayer of the complaint which asked for an accounting of her actings and doings as executrix and life tenant.

By an order of the circuit court the cause was referred to a special referee to take the testimony, said order providing "that the said Eva Lea be allowed to make a full accounting and show all monies and assets belonging to said estate that have come into her hands either as executrix or life tenant, and all disbursements made by her in connection with said estate, and the amount of assets and property of said estate which is or should be now in her possession as life tenant; and that said referee do report his findings to this Court."

The special master, after an exhaustive hearing, reported an itemized account, disallowing certain items charged against the estate, and showing that the life tenant had in her custody and control personalty, consisting of stocks, bonds, cash, and securities aggregating $15,622.31 belonging to the corpus of the estate. He allowed as charges against the estate items aggregating $6,140, leaving a balance to be accounted for of $9,482.31. He further found that the evidence showed no fraud, but that "a most negligent and ignorant handling of the estate monies has occurred by the life tenant," and he concluded his report with the recommendation that the life tenant should be required to give a good and sufficient bond for the preservation of the estate. The plaintiff did not except to the report of the special master.

From the report of the master, the defendant (respondent here Eva Lea) appealed to the circuit court on several grounds relative to items disallowed in her accounting. The court sustained the defendant upon items totaling $2,395.50, holding that this amount should be credited to her account and charged against the estate. Deducting these figures from $9,482.31, it leaves to be accounted for by Mrs. Lea the sum of $7,087.31. The record shows that she exhibited to the referee stocks, bonds, credits, and securities amounting to $7,444, or an excess of $356.69. The only reasonable conclusion to be drawn from the consideration of the foregoing calculation is that Mrs.

Lea, due to the intermingling of her personal funds with the funds of the estate, paid debts of the estate with her personal funds amounting to the excess shown, to wit, $356.69. No appeal has been taken from this holding of the circuit decree by the appellant.

The final ground of appeal by the life tenant, Eva Lea, was from the...