McNair v. Howle

• Decision Date: 26 February 1923
• Docket Number: 11143.
• Citation: 116 S.E. 279,123 S.C. 252
• Parties: MCNAIR v. HOWLE ET AL.
• Court: South Carolina Supreme Court

116 S.E. 279

123 S.C. 252

MCNAIR v. HOWLE ET AL.

No. 11143.

Supreme Court of South Carolina

February 26, 1923

Appeal from Common Pleas Circuit Court of Darlington County; T. J Mauldin, Judge.

Action by A. M. McNair against W. H. Howle and others. From an order dismissing his petition, plaintiff appeals. Reversed and cause remanded.

Though the approval of the final report and discharge of a former administrator may have the force and effect of a judgment vacating the office, it is not conclusive that the estate has been wholly settled so as to preclude the appointment of an administrator de bonis non.D. Carl Cook, of Hartsville, for appellant.

Miller & Lawson, of Hartsville, for respondents.

MARION J.

Action in the court of common pleas by a creditor against an administrator de bonis non, the heirs at law and distributees of an intestate, and a real estate mortgage creditor, seeking (1) to establish a claim founded on an account for goods sold and delivered to the said intestate, (2) to subject real estate descended to the payment of the plaintiff's debt and of any other debts that might be established in the action, and (3) to marshal assets for that purpose.

The intestate, C. W. Shoemake, died on or about August 15, 1918. The defendant W. H. Howle was duly appointed administrator of his estate on November 23, 1918. Having entered upon the discharge of the duties of this trust, he gave due notice pursuant to the requirements of the statute (section 3630, Civil Code 1912), for creditors of the estate in his charge to render an account of their demands, duly attested. He collected the personal assets of the estate and applied them to the payment of such debts of the deceased as were ascertained to be due within the 12 months allowed by law for that purpose (section 3630). On December 26, 1919, about one year and one month after the date of his appointment pursuant to notice of application duly published (section 47, Code of Civil Proc. 1912), the probate judge of Darlington county granted him an order of discharge. The order recited among other things, that no cause had been shown against the application, and that "from an examination of the situation of the affairs of the said estate" it appeared that the petitioner had faithfully and honestly discharged the trust and confidence reposed in him," and thereupon adjudged that the petitioner was "from henceforth and forever discharged from all liabilities as administrator as aforesaid." The claim of the plaintiff, McNair, was not presented to or filed with the administrator within the 12 months allowed for the ascertainment of debts and was not rendered or filed prior to his order of discharge. About 6 months after the date of his discharge as general administrator, on May 14, 1920, W. H. Howle was on his own petition appointed by the probate court of Darlington county administrator de bonis non of the estate of C. W. Shoemake, the intestate. Thereafter on July 26, 1920, the plaintiff brought this action. The answers of the defendants denied liability generally, and set up defenses based upon the failure of the plaintiff to render his demand within the time required by law, and pleaded the full administration and final settlement of the estate by the general administrator. The cause having come on for trial and the plaintiff's counsel having admitted in open court the facts to be substantially as above stated and having further conceded that the order discharging the general administrator had not been vacated or set aside, the circuit judge held: (1) That the administrator was a necessary party; (2) that the order of the probate court undertaking to appoint the former general administrator as administrator de bonis non was without legal effect; (3) that to grant the plaintiff the relief prayed would be to accord him preferential treatment over the other creditors whose claims had been settled, and thus permit him to take advantage of his own dereliction, and thereupon adjudged that the plaintiff's action be dismissed. The plaintiff appeals upon exceptions which challenge the correctness of that adjudication. The grounds of the circuit judge's action will be considered and disposed of in the order above stated.

1. First, we think the circuit court was correct in holding that the administrator was a necessary party to the action. Any claim or demand, payable or adjustable in money, is a claim primarily against the personal estate of the decedent. Mobley v. Cureton, 2 S. C. 140; Richardson v. Inglesby, 13 Rich. Eq. 60. Under the American system of administering the estates of deceased persons, the administrator is considered the deputy of the probate court, or other court of similar powers, to whose jurisdiction is committed by statute law the care and management of the intestate's estate for the benefit of creditors and of all who may be legally entitled thereto. As the personal "representative of the deceased in regard to his personal estate, he (the administrator) has the same property in the goods of the intestate as the intestate himself had when living, and the same remedies to recover them" or to prevent their unlawful appropriation by others. McVaughters v. Elder, 2 Brev. 307, 313; and see Rhame v. Lewis, 13 Rich. Eq. 269, 292. Hence it is elementary that, as a general rule, in an action or suit by a creditor to enforce a claim against the estate of a decedent, the personal representative of the deceased debtor "is the only necessary or even proper party." 24 C.J. 797, § 1983; Fraser v. Charleston, 19 S.C. 385, 400; Winstanley v. Savage, 2 McCord, Eq. 435, 437; Richardson v. Cooley, 20 S.C. 347.

The logical application of that rule, grounded upon the elementary principles above adverted to, led to the rendition in the early judicial history of this state of a decision which seems to have been for many years a subject of controversy and a source of embarrassment to bench and bar. That was the decision in De'Urphey v. Nelson, 1 Brev. 289, rendered by the constitutional court in 1803, holding that--

"Lands descended are liable for the payment of the ancestor's debt, and may be sold under a judgment recovered on that debt against the administrator, although the heirs were not parties to the action."

For an interesting review and discussion of the decisions following De'Urphey v. Nelson, see the opinions of Mr. Chief Justice McIver in Huggins v. Oliver, 21 S.C. 159, and of Mr. Acting Associate Justice Benet in Brock v. Kirkpatrick, 60 S.C. 322, 38 S.E. 779, 85 Am. St. Rep. 847. As pointed out by Judge Benet in Brock v. Kirkpatrick, supra, the rule on that subject deduced from the decisions by the great judge, McIver, in Huggins v. Oliver, supra, has now become the settled law of this jurisdiction, to wit, that while lands of an intestate may be sold under a judgment recovered against the administrator, they may not be sold under such judgment if the lands have passed into the actual and exclusive possession of the heirs before the judgment was recovered and before any lien was thus fixed upon them. From which rule it follows, of course, that the heirs at law in actual and exclusive possession of lands descended must be made parties to any action or proceeding to subject such lands to payment of the ancestor's debts. Brock v. Kirkpatrick, supra; Gilliland v. Caldwell, 1 S. C. 198; McLaurin v. Rion, 24 S.C. 407; Moore v. Smith, 24 S.C. 316; Leroy v. Charleston, 20 S.C. 71.

While the line of decisions referred to clearly illustrates the elementary rule that in an action by a creditor to enforce a claim against the estate of an intestate the administrator is the only necessary party, except where such enforcement involves a sale of lands in the possession of the heirs, and as clearly enunciates the proposition that lands in the exclusive possession of the heirs may not be subjected to payment of the ancestor's debts except in a suit to which the heirs are parties, the precise question here involved as to the necessity for joining the administrator in an action against the heirs to establish a debt of the ancestor and to subject the descended lands to the payment of the alleged debt does not seem to have been expressly decided. In Vernon v. Ehrich's Ex'rs, 2 Hill, Eq. 259 261, Judge Harper, while conceding that in a suit in equity the administrator was a necessary party, intimated that an action at law by a creditor might be sustained against the heir alone, and that in such an action "the executor neither would nor could be joined." There are expressions of like import in Reeder v. Speake, 4 S. C. 293; Lanier v. Griffin, 11 S.C. 582; and Ariail v. Ariail, 29 S.C. 84, 7 S.E. 35. But in Brock v. Kirkpatrick, supra, where the question was as to when a right of action against devisees in possession of lands arose so as to give currency to the statute of limitations, those decisions were reviewed and criticized and the doctrine of McMullin v. Brown, 2 Hill, Eq. 462, holding that the statute would not run so as to protect legatees until after the remedy against the executor had been exhausted, was again expressly approved and applied to devisees in possession of lands. If a right of action does not accrue against devisees or heirs at law in possession of lands until the creditor's remedy against the executor or administrator is exhausted, it follows, of course, that no action may be maintained against such devisees or heirs alone where the creditor's claim has not been established in an action or proceeding to which the executor or administrator was a party. In Cleveland v. Mills, 9 S. C. 430, an action was maintained against devisees and heirs at law alone to subject lands to the payment of decedents' debts; but the court adverts to the fact that no question was made as to...