Rutledge v. Tunno

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GARY
• Citation: 48 S.E. 297,69 S.C. 400
• Parties: RUTLEDGE v. TUNNO et al.
• Decision Date: 14 July 1904

48 S.E. 297
69 S.C. 400

RUTLEDGE
v.
TUNNO et al.

Supreme Court of South Carolina.

July 14, 1904.

marriage — evidence — french spoliation claims—distribution of fund— bastards.

1. Evidence in an action for the distribution of a fund derived under an act of Congress relating to the French spoliation claims examined, and held insufficient to establish a marriage between the father and the mother of one whose descendants claim to be entitled to a portion of the estate.

2. Under the statute of distribution in South Carolina bastard children do not take by inheritance a fund derived under the acts of Congress relating to the French spoliation claims, but the fund goes to the statutory next of kin.

Appeal from Common Pleas Circuit Court of Charleston County; Watts, Judge.

Action by B. H. Rutledge, administrator de bonis non, against M. R. Tunno and others. From the decree certain defendants appeal. Affirmed.

The following is the report of Master Sass, to whom all issues were referred:

"The issues presented in this case are as follows: The plaintiff, B. H. Rutledge, is the stakeholder of a fund which is in his hands under the following circumstances: Letters of administration upon the estate of Adam Tunno were granted to plaintiff by the probate court of Charleston county on the 24th of March, 1899. The said administrator was then substituted by an order of the court of claims in the place of his father, the late B. H. Rutledge, Esq., who had been previously appointed administrator of Tunno, and who died in 1893, in a suit then pending in said court of claims under the French spoliation act. On the 22d of June, 1899, plaintiff received a check from the United States Treasury, payable to B. H. Rutledge, administrator of Adam Tunno, survivor of Tunno & Cox, for the sum of $21,167.83, the amount of the award in said case. From this fund plaintiff has paid over to the Causten Agency of Washington one-third part thereof, which was due them under a contract with the administrator for the prosecution of the claim. He still holds in his hands the sum of $14,111.87, subject to the commissions of the administrator. The ownership of this fund is the question which this court is called upon to decide. The claim upon which the money was recovered was a claim of the copartnership of Tunno & Cox. Presumably the partners held it in equal shares. It is attempted to show upon the authority of an expression in the will of Adam Tunno, in which he declares that he has 'finally settled with Elizabeth Cox, the widow and executrix of my late partner, James Cox, as will appear by certain deeds or discharges now in my desk, ' that the estate of James Cox has no other interest in the proceeds of this claim; but such a position cannot seriously be maintained in view of the fact that no other evidence upon the point has been adduced, no trace having been found of the deeds and discharges referred to. Whatever the Cox interest may be—and it is apparently admitted that the partners shared equally in this fund—it must be adjudged, with the evidence now before us, to have been paid to the plaintiff under a misapprehension of the Treasury Department that he represented the next of kin of Cox. Diligent search has been made by plaintiff to discover who the heirs of Cox may be, but without success. No administrator or other representative of his estate was made a party to this bill, there being no such administrator at the time of the filing of the bill. During the progress of this litigation an intervention was filed on behalf of an administrator of the estate of Cox, appointed after the litigation began, asking to be made a party to this suit, which petition was refused by the Supreme Court of this state. See Ex parte Johnson, 63 S. C. 205, 41 S. E. 308.

"Under this state of facts it is claimed by the Treasury Department that the Cox share, which I find to be one-half of the net fund in the hands of the administrator, should be returned to the department, as having been paid over in error to the administrator of Tunno. And I think that such a disposition should be decreed by the court, due provision being made for such expenses as should properly be chargeable against such fund.

"To the portion of the fund admitted to belong to the estate of Adam Tunno, several claimants appear. One set of claimants are known in this case as the 'Barguet Heirs.' They are mulattoes, and are descendants of Barbara Barguet, who, before her marriage to Barguet, was known as Barbara Tunno. and whom the evidence shows to have been the putative daughter of Adam Tunno by Margaret Bettingall, described in the will of Adam Tunno as 'the free black woman, Margaret Bettingall, ' and in the same words in the will of Margaret Bettingall herself. If the claim of this group of claimants be admitted, there would be no necessity to look

[48 S.E. 298]

further, for, as the only direct descendants of Adam Tunno, they would take the whole estate. But, failing their claim, the only other claimants are the descendants of the three brothers of Adam Tunno, and as between them the question arises whether they take per stirpes or per capita.

"A brief statement of the facts must be made. Adam Tunno died on or about the

——day of January, 1833, leaving of force

bis last will and testament, which is in evidence. He had three brothers only who left issue, to wit, William Tunno, John Tunno, and Archibald Tunno. William Tunno married, and died, leaving three children, all of whom died previous to March, 1891. The three children were Ann Tunno, Selina Tunno, and John Champneys Tunno. The two daughters, Ann and Selina Tunno, died unmarried, and without issue, previous to March, 1891. John Champneys Tunno died in the year 1858, leaving surviving him the following children: William M. Tunno, Matthew R. Tunno, Mary Tunno, Rebecca Tunno, and John Tunno Champneys (whose name was then changed). Mary Tunno died unmarried, and without issue, in 1880. Rebecca Tunno died in 1898, unmarried, and without issue. John Tunno Champneys died in——, leaving a widow, Ozella K. Champneys, and six children—John Tunno Champneys, Ozella K. Champneys, who died in 1890, unmarried and without issue, Elizabeth Knudsen, Annie Osborne, Mary O. Osborne and William Topp Champneys. John Tunno married and died, leaving one son, who died unmarried and without issue, and one daughter, who married Sartoris, and died previous to 1891, leaving one son, Alfred Sartoris, who is a party to the suit. Archibald Tunno died in London in 1830, having married, and leaving a daughter, Elizabeth Webb. She married and left issue, and died 11th November, 1852. Two, only, of the children that survived her lived until 1891, and they are still alive, and are the defendants herein, Augustus Tunno Higgs and Mary Calhoun Webb.

"Adam Tunno was a merchant living in Charleston in the first quarter of the last century. He died in 1833, and his will, dated in 1831, is in evidence. He was a free, and, as the evidence shows, a loose, liver. By his will he sets aside a fund of $12,000 'to and for the uses and purposes set forth in a paper in my handwriting and with my own proper name subscribed thereto, bearing the same date as this will, which said instrument of writing shall be taken as part of this my will.' The paper referred to is attached to the will as probated. It directs the disposition of said fund 'to the several names now stated, the parties being either under my protection or my servants, my property.' Here follow the names referred to, first among which are the following items: 'To the free black woman, Margaret Bettingall, with her daughter, Hagar Cole and children, $2,500. To Barbara Barquet by her trustees, $2,500.' The other bequests are of smaller amounts, and of apparently the same character.

"It is not pretended that any ceremony of marriage was ever performed between Adam Tunno and Margaret Bettingall, but it is claimed they lived together as husband and wife. The testimony going to support this allegation is entirely that of the Barguets themselves, or, rather, of the defendant Listen W. Barguet—-the son of Barbara Barguet and grandson of Margaret Bettingall— and of certain colored witnesses who testify to cohabitation and repute. I do not think it necessary to go into a detailed analysis of all the testimony on this point. The question of marriage is one of mixed law and fact. As was said by Chief Justice Moses in Luck-en v. Wichman,...