Pendergrass v. Pendergrass

• Decision Date: 27 November 1886
• Citation: 1 S.E. 45,26 S.C. 19
• Parties: PENDERGRASS v. PENDERGRASS and others.
• Court: South Carolina Supreme Court

1 S.E. 45

26 S.C. 19

PENDERGRASS v. PENDERGRASS and others.

Supreme Court of South Carolina

November 27, 1886

Appeal from common pleas, Chester county.

W. A Sanders, for plaintiff.

Patterson & Gage, Mr. Hamilton, and Mr. Brice, for defendants.

McGOWAN J.

To have a clear view of the points made in this case, it is necessary to make a short statement. Many years ago (1854) Preston Worthy died intestate, leaving, as his heirs at law, his widow, Rebecca, and three children, William W., Mary B., and Preston Worthy, Jr., the latter of whom died in his infancy. The intestate was seized and possessed of a considerable personal estate and two tracts of land,--the Broad river tract and the Home place. Henry Worthy, brother of the deceased, administered upon his estate, and sold most, if not all, of the personal property. At this sale the widow Rebecca, was a large purchaser, and gave to the administrator her notes, with David Pendergrass and others as her sureties. She soon after married the said Pendergrass. In 1885 the widow, Rebecca instituted proceedings in equity (Rebecca Worthy v. Mary B. Worthy et al.) for partition of the lands. The administrator, Henry Worthy, admitted that the personal estate was sufficient to pay the debts, and the Broad river place was sold, and the proceeds divided, under order of the court, leaving the Home place as a home for the widow and children. In 1868, before the estate was finally settled, Henry Worthy, the administrator, died, leaving a will, of which F. B. Worthy is the executor, and since that time there has been no legal representative of the estate of Preston Worthy.

Matters stood in this condition, the estate unsettled, and the widow and children living on the Home place, during the war, and down to 1874, when F. B. Worthy, executor of the administrator, sued Rebecca Pendergrass, and her surety David Pendergrass, on the note for the purchases of the said Rebecca at the sale of the administrator as before stated, viz., F. B. Worthy, Ex'r, v. Rebeeca Pendergrass, and David Pendergrass, Her Surety. In this action it was claimed that the share of Rebecca in the personal estate (including the note sued on) should be set off against the note for her purchases, which was allowed, and, in order to ascertain the amount of that share, the court ordered the plaintiff, F. B. Worthy, executor, to account for Henry's administration of Preston Worthy's personal estate. After a protracted litigation, it was finally (in 1885) ascertained that F. B. Worthy, as executor of Henry, was entitled to judgment against Rebecca and David Pendergrass for $2,608.71, and costs, and accordingly judgment was so rendered in the common pleas; and in the same accounting it was incidentally ascertained that the estate of Henry, the administrator, was in advance to the estate of his intestate, Preston, in the sum of $1,602.93.

Pending this long litigation in the common pleas, William W. Worthy, one of the distributees, instituted proceedings in the probate court entitled W. W. Worthy et al. v. F. B. Worthy, Ex'r, Rebecca Pendergrass, et al., against F. B. Worthy, as executor of Henry Worthy, to account for Henry's administration of the estate of Preston. To this suit all the heirs of Preston Worthy, or their legal representatives, were made parties; and, by consent, a decree was rendered (1885) precisely in accordance with the result of the accounting in the case above stated of F. B. Worthy, as Ex'r, v. Rebecca Pendergrass and David Pendergrass, establishing that the administrator, Henry, was in advance to his intestate, Preston, in the sum of $1,602.93.

In 1874, David Pendergrass, who had intermarried with the widow, and was living with her on the Home place, purchased the interest therein of William W. Worthy, and in 1880 conveyed the same to his two sons, Addison and Joseph Pendergrass. In 1866, Mary B. Worthy, the other distributee, married Waties Pendergrass, and died intestate in 1873, leaving as her heirs and distributees her husband, Waties Pendergrass, and her children, Mary B., Ora, William, Preston, and David Walker. Waties Pendergrass administered upon her estate, and in 1882 instituted this action for partition of the Home place. None of the heirs answered, but F. B. Worthy came in by petition, claiming that, as executor of Henry Worthy, he had demands against Rebecca Pendergrass to a large amount, which were about to go into judgment against her, to which her share of the lands should be applied; and as these claims were on notes for purchases at the sale of Henry Worthy, as administrator, the share of Rebecca in the land descended should be first applied to them. W. T. D. Cowser & Son also came in, claiming that the share of Rebecca should be first applied to a judgment held by them against her for $296.20, rendered as early as March 18, 1882, on notes bearing date in 1881.

The issues were referred to J. L. Glenn, Esq., as special referee, who held that the advances made by Henry Worthy as administrator should be refunded, before partition, out of the whole land, (except the share of W. W. Worthy, which had been bona fide aliened;) and that the share of Rebecca in the remainder should be applied to the judgments against her, according to their respective dates. On exceptions to this report, the circuit judge held that F. B. Worthy, as the representative of the estate of the administrator, Henry, should be reimbursed the amount which it appeared the administrator was in advance to the estate of his intestate before partition, and that the share of Rebecca in the remainder of the land should be applied to the judgment of F. B. Worthy, executor, in preference to that of Cowser & Son, which was older.

From this decree Cowser & Son appeal to this court upon the following exceptions:

"(1) Because the decree finds that the judgment rendered March 26, 1885, in favor of F. B. Worthy, executor, against Rebecca Pendergrass and David Pendergrass, is a preferred judgment to that of Cowser & Son against Rebecca Pendergrass, rendered March 18, 1882; whereas, the decree should have found that the judgment of Cowser & Son is a prior and preferred lien to that of F. B. Worthy, executor, on the distributive share of Rebecca in the lands sought to be partitioned herein, and entitled to be first paid.

"(2) Because the decree finds that the alleged judgment of March 25, 1885, for $1,602, in favor of the estate of Henry Worthy against the estate of Preston Worthy, is a valid judgment, and a first lien on the premises, the subject of this action; whereas, the decree should have found that the said alleged judgment of $1,602 is not a valid judgment 'against the estate of Preston Worthy, because that estate was not represented in the action by an administrator de bonis non, and no claim was made in the pleadings for a debt against the estate of Preston Worthy, and because Rebecca Pendergrass was the only distributee of Preston Worthy, who was a party to the action.

"(3) Because the decree finds that the judgment of the probate court in the case of W. W. Worthy v. F. B. Worthy, as Executor, et al., (May 21, 1885,) offered only as evidence of the cause of action in F. B. Worthy, Executor, v. Rebecca Pendergrass et al., was not only admissible as evidence against Cowser & Son, who were not parties thereto, but recognizes it as the cause of action itself, and directs that it shall be paid.

"(4) Because the said decree confirms the action of the referee, in considering the decree of the probate court as proper evidence in reply, when objection was made to it at the time it was offered, and such objection sustained, and then afterwards considered in making up his report; whereas, the decree should have found that the decree of the probate court was not competent evidence in reply, in any sense, as Cowser & Son were not parties to it, and neither they, nor other parties to the action, had offered evidence against the cause of action set up in the judgment and decree of F. B. Worthy, Executor, v. Rebecca Pendergrass et al.; if evidence, it was cumulative only, and therefore incompetent," etc.

This is a proceeding, on the equity side of the court, for the partition of a remaining tract of land of the estate of Preston Worthy,...