Rush v. Warren

• Decision Date: 07 February 1887
• Citation: 1 S.E. 363,26 S.c. 72
• Parties: Rush and others v. Warren, Ex'x, etc., and another.
• Court: South Carolina Supreme Court

1 S.E. 363

(26 S.c. 72)

Rush and others

v.Warren, Ex'x, etc., and another.

Supreme Court of South Carolina.

February 7, 1887

Executors—Account—Action by Heirs and Distributees.

Where an action is brought by heirs at law and distributees, who under the South Carolina statute of distributions are identical, against an administrator of the decedent in his individual capacity and as administrator, for an account of the administration of the personal estate, and also for the purpose of setting aside a sale of a tract of land bought by such administrator under an alleged execution against the decedent, and a plea to the jurisdiction of the court in respect to the land is sustained, the action may still be maintained by plaintiffs for an accounting for the personal property.

W. Z. Leitner, (R. A. Lynch, of counsel,) for plaintiffs, respondents.

J. D. Kennedy and A. S. Douglass, for defendants, appellants.

McIver, J. The plaintiffs, as heirs at law and distributees of Levi Moore, deceased, bring this action in the county of Kershaw against the defendant as executrix of John Warren, deceased, and in her individual capacity, for an account of the administration of the personal estate of Levi Moore, and for the purpose of setting aside a sale of a certain tract of land bought by Sarah E. Warren in her individual capacity under an alleged execution against said Levi Moore. It appears that some time in 1862 Levi Moore, being seized and possessed of a small personal estate and the tract of land above-mentioned, situate in Fairfield county, departed this life intestate, leaving the plaintiffs as his heirs at law and distributees, and that soon thereafter the above-named John Warren administered upon his personal estate. It seems that Levi Moore bought the above-mentioned tract of land on a credit, and that said John Warren and one H. H. Clarke were his sureties on the obligation given to secure the payment of the purchase, and that to indemnify said sureties Moore confessed a judgment to them in the amount of the penalty of the obligation for the purchase money. The allegation on the part of the plaintiffs is that Moore, during his life-time, deposited with Warren a sufficient amount of cotton to pay the debt for which Warren was surety, but that Warren misapplied the same, and has had the land sold under said judgment, and the same has been bought and titles made to the defendant Sarah E. Warren. John Warren died in 1883, leaving a will of which the said Sarah E. Warren is the duly-qualified executrix. The defendant in her answer denies many of the allegations of the complaint, especially those charging a misapplication of the assets of Moore's estate by her testator; alleges that, under proceedings instituted by her testator in the county of Fairfield against the heirs of Moore to revive the execution issued to enforce the above-mentioned judgment, he accounted fully for his administration of theestate of Moore, obtained an order for the renewal of said execution, under which the said tract of land was regularly sold by the sheriff and bought by defendant, and she pleads such accounting in bar of any further accounting. She also interposed a plea to the jurisdiction, on the ground, as we understand it, that the court in Fairfield, where the land in question is situate, alone has jurisdiction. The issues of law and fact were referred to the master, who sustained the plea to the jurisdiction, and dismissed the...