Rodgers v. Herron, 16938

• Citation: 226 S.C. 317,85 S.E.2d 104
• Decision Date: 10 December 1954
• Docket Number: No. 16938,16938
• Court: United States State Supreme Court of South Carolina
• Parties: , 48 A.L.R.2d 1241 Mrs. Freda RODGERS et al., Respondents, v. Mrs. Mae HERRON and The Citizens & Southern National Bank of South Carolina, of whom The Citizens & Southern National Bank of South Carolina, is, Appellant.

Page 104

85 S.E.2d 104

226 S.C. 317, 48 A.L.R.2d 1241

Mrs. Freda RODGERS et al., Respondents, v. Mrs. Mae HERRON and The Citizens & Southern National Bank of South Carolina, of whom The Citizens & Southern National Bank of South Carolina, is, Appellant.

No. 16938.

Supreme Court of South Carolina.

Dec. 10, 1954.

Haynsworth & Haynsworth, Greenville, Hagood, Rivers & Young, Charleston, for appellant.

W. E. Bowen, Williams & Henry, Greenville, for respondents.

LEGGE, Justice.

The will of A. F. Klaren, who died in 1935, directed that the executor, The Atlantic Savings Bank of Charleston, have charge of the corpus of the estate and pay over the income to his widow, Mae Klaren, during her widowhood, and, upon her death or remarriage, in equal shares to his children, until the youngest should have attained the age of twenty-one years, and thereupon distribute the corpus among them in equal shares. Surviving the testator were his widow and seven children. The Atlantic Savings Bank of Charleston, which later became The Citizens and Southern National Bank of South Carolina, entered upon the performance of its duties as executor and trustee in 1935, and paid over the income to the widow until August, 1949, when this action was commenced by the children against her and it, the complaint alleging that she 'has married one G. T. Herron, and that the said Mae Herron and G. T. Herron are now, and have for many years been, living together as man and wife,' and that the plaintiffs (respondents here) were therefore entitled to the income, and praying: (a) for title to or possession of the income of said property; (b) for an Order restraining the defendant Mae Herron from receiving, and her codefendant from paying to her, any part of the estate; and (c) for such other and further relief as to the court might seem meet and proper.

The defendant Mae Herron made no answer, and was adjudged in default. The bank answered, denying any knowledge or information sufficient to form a belief as to the alleged marriage of the individual defendant, alleging that it had been paying the income from the estate to Mrs. Mae Klaren, and praying instructions as to the handling of the estate in its future transactions as executor and trustee under the will.

The cause was referred to the Master for Greenville County, who, after hearing testimony, submitted his report dated October 11, 1949, in which he found among other things that in 1940 Mrs. Mae Klaren had moved from Charleston to Greenville County and had there become the common-law wife of G. T. Herron 'some time prior to the institution of this suit; * * * that the testimony indicates that they were married in June, 1940'; that by her marriage to G. T. Herron she had forfeited her right to any interest that she might have had in the estate of her deceased husband; that therefore the children of O. F. Klaren were the owners of the property of O. F. Klaren under the will and entitled to the income; and that the youngest child, Ann Klaren, became fourteen years of age on February 17, 1949. No exceptions to this report were filed, and in due course it was confirmed by decree of the Honorable G. Duncan Bellinger, then presiding in the Thirteenth Circuit, dated October 26, 1949. The decree, from which no appeal was taken, adjudged among other things 'that the plaintiffs, under the terms of said will, upon the marriage of the said Mrs. Mae Klaren to G. T. Herron, became, and are, the owners of the prolperty of the said O. F. Klaren under said will, and are entitled to the 'title or possession to the income of' the property referred to in said will.'

Thereafter the plaintiffs, by petition in the cause, alleged that the defendant bank had paid to them the income accruing since the date of the institution of the suit, but had refused to pay to them the income from the time of their mother's remarriage to the date of the institution of the suit; 'that they are entitled to an order referring this phase of the matter to Honorable E. Inman, Master, to take testimony and report to the Court his findings as to the amount of the income from said estate due petitioners from June, 1940, the date of said marriage as found by said order of Judge Bellinger, until August 8, 1949, the date of the institution of said suit; if, however, the said order of Judge Bellinger should be construed as not fixing definitely the date of said marriage, that as an incident to the determination of the amount of said income due petitioners, that testimony be taken to determine the date of said marriage'; and they prayed that the matter be referred to the said Master to take testimony and report his conclusions of law and fact.

To this petition the defendant bank filed its return, alleging that the issues sought to be raised by the petition were foreign to those made by the complaint in the cause, and that any claim that the plaintiffs might have against it because of alleged improper payment or disbursement of funds prior to the commencement of the suit should be made in a new and different action against it; and praying that the petition be dismissed. The issues thus made came on to be heard before the Honorable J. Frank Eatmon, Presiding Judge, who by his order dated December 23, 1950, dismissed the petition, holding that the pleadings had raised no issue as to income for the period of time intervening between the date of Mrs. Klaren's remarriage and the time of the commencement of this action. On appeal by the plaintiffs to this court the judgment of the lower court was reversed and the cause was remanded for the purpose of determining the amount of the estate's income and disbursements thereof from the time Mrs. Klaren became Mrs. Herron, and to determine what amounts, if any, were due appellants, and the liability, if any, of the bank therefor; the appellants were given twenty days after the filing of the remittitur within which to make and serve on the respondent bank such amendments to their pleadings as they might be advised; and the bank was given a like period thereafter within which to make and serve on appellants such amendments to its pleadings as it might be advised, following which appellants were given twenty days within which to reply to new matter in the bank's pleadings. Roger v. Herron, 220 S.C. 264, 66 S.E.2d 873.

Thereafter the bank filed its amended answer to the complaint and an amended return to the petition before mentioned. The amended answer contained, in addition to those of the original answer, allegations to the effect that the bank had not, until the commencement of the action, received from any responsible person sufficient information that the widow was no longer entitled to receive the income of the estate to justify it in stopping such payments. The amended return contained like allegations in addition to those of the original return.

Respondents then moved before the Master to strike the amended answer for the reason that the only pleadings before this court on the former appeal were the petition and the bank's return thereto, and that the order of this court allowing the parties to amend their pleadings had reference to those pleadings only and not to the original complaint or answer.

Following a reference on February 11, 1952, the testimony adduced at which we shall discuss later, the Master filed his report on July 21, 1952, in which he (a) refused the motion to strike the amended answer, (b) held that the bank had acted with complete good faith and due diligence and was therefore not liable to pay from its own funds the amounts which it had paid to the widow between the time of her remarriage and the commencement of this action, and (c) recommended that the complaint be dismissed as to the defendant bank.

Plaintiffs having excepted, the matter came before the Honorable J. B. Pruitt, Presiding Judge, who under date December 21, 1953, issued his decree sustaining the exceptions to the Master's report, and adjudging that the defendant bank pay to the plaintiffs sixteen thousand sixty-nine and 86/100 ($16,069.86) dollars, being the amount of the income of the estate for the period beginning July 1, 1940, 'the date following their mother's marriage', to August 8, 1949, the date of the commencement of this action. From this decree the bank now appeals.

We shall discuss briefly the testimony of Mr. L. W. Barrett, trust officer of the appellant bank, who was the only witness examined at the reference on February 11, 1952. In August, 1944, he received from Mrs. Klaren the following letter:

'Aug. 14-1944

'Mr. L. W. Barrett

'Dear Ser

'Jest a few line to day in regard of me I wood like to know if you can fix it with the Probate Courts so I can get marred. and get my income tell the Baby is 21 years old But if you cent I will stay singel so let me know whart you can dew for me.

'Thinkin you

'Mrs. Mae. Klaren

'Pelzer, S. C.

'Gen Del'

His reply follows:

'August 17, 1944

'Mrs. Mae Klaren

'Pelzer

'South Carolina

'Dear Mrs. Klaren:

'In reply to your letter of August 14, there is nothing I can do that will make it possible for you to marry again and continue to receive the income from the Trust. The will is very specific on this point, stating that you are entitled to the net income 'during the term of her natural life or until she shall marry.'

'It does not appear that I will be able to send you any more money monthly than we have been paying you in the last two years because the rents provide just about enough to pay you what we have been giving you and to provide for the taxes, insurance and repairs on the properties.

'Yours very truly

'L. W. Barrett

'Trust Officer'

LWB:FS

Following her receipt of Mr. Barrett's letter of August 17, 1944, Mrs. Klaren came to Charleston and asked him in person if he would go to the Probate Judge and see if there was any way by which, if she should remarry, she could still get the income from the estate. Mr. Barrett told her that he could not do...