Sherwood v. Mclaurin

• Decision Date: 26 February 1916
• Docket Number: (No. 9269.)
• Citation: 88 S.E. 363
• Court: South Carolina Supreme Court
• Parties: SHERWOOD et al. v. McLAURIN et al.

88 S.E. 363

SHERWOOD et al.

v.McLAURIN et al.

(No. 9269.)

Supreme Court of South Carolina.

Feb. 26, 1916.

Appeal from Common Pleas Circuit Court of Marlboro County; I. W. Bowman, Judge.

Suit by T. C. Sherwood and another, as executors of the last will and testament of James S. Le Gette, against E. A, McLaurin and others. From the judgment, Mrs. J. Markey and others, defendants, appeal. Affirmed.

The following is the report of W. M. Stevenson, Esq., Special Referee, upon which the court affirms:

Jas. S. Le Gette was a prominent citizen of Marlboro county, and died in November, 1909, leaving his last will and testament, which was duly probated, and a copy of which is reported up with the testimony herein.

The plaintiffs herein qualified as executors, and proceeded with the administration of the estate, which consisted of a small amount of personal property, and a house and lot in Clio, S. C, where the testator resided before his death. He was survived several months by his wife.

Some time after their qualification, the executors, acting under what they considered authority given them in the will, advertised the house and lot for sale in Bennettsville. At the sale one of the defendants, Mrs. Julia Markey, a daughter of the testator and the only defendant in this case who has made a contest, through her attorney, J. K. Owens, made proclamation that the executors had no authority to sell and could convey no title. The executors had previously instructed their attorney, D. D. McColl, to bid the place up to $7,000, as they considered it should bring that. There were bids, and the place was knocked down to McColl as attorney for the executors. Thereupon the executors brought this suit against all the parties, heirs at law, legatees, and devisees, including one creditor, to construe the will and establish the power of the executors, etc. No answer was made to the complaint except by Mrs. Julia Markey.

Mrs. Markey was in possession of the house at the death of her father and mother, and has resided so ever since, having exclusive possession thereof, and previous to the sale had filed with the executors an account in which was included a bill for nursing her father and mother. In her answer she admitted the death of Capt. Le Gette, leaving unrevoked and of full force, his last will and testament already probated, and set up the sale of the house and lot, after due advertisement, and the purchase of it by the executors, and that they had been in possession of the money ever since, and had refused and failed to make settlement with the creditors and legatees, especially setting up her own claim filed with them, and asking for judgment for the amount thereof.

The case went to the Supreme Court on the scope of the pleadings, and they held in 96 S. C. 348, 80 S. E. 609, that it was a creditor's bill, to call in creditors, sell the land, pay debts, and divide the remainder, and that Mrs. Markey had properly set up her claim in the action. No order requiring creditors to come in and prove their claims has, so far as I know, ever been passed by the court, and there has been no reference on claims as such, but the executors have exhibited various claims filed with them, and amounts paid by them for the estate, which will be hereafter set forth. I presume that this substantially carries out the requirements.

The contest in the case has been between the executors on the one side, and Mrs. Julia Markey on the other, none of the other parties having, made answer, and the main question over which the contest has arisen is whether Mrs. Markey has the right to compensation in the sum of $720 for services, board, washing, nurs ing, and care during the last illness of Jas. S. Le Gette from December 18, 1908, to October 8, 1909, at $75 per month, and for the same items as to Mrs. Jas. S. Le Gette, her mother, from December 24, 1908, to December 3, 1909, at $100 per month, $1,130.

The testimony has taken a very wide range, and has covered many disagreeable incidents, shows contradictions between the witnesses, and is largely on the question of the good or ill treatment of Capt. and Mrs. Le Gette by Mrs. Markey, their daughter, It was agreed among counsel that all the testimony should be taken down, and that such objections as either party desired to make to it should be made at the argument. At the argument no special objections were made at all, and each side merely said they objected to any testimony that was objectionable under section 438 of the Code of Civil Procedure if it had not been waived. This objection is so general, and both the executors and Mrs. Markey having introduced evidence conflicting with that rule, I think the protection of the statute has been waived. At all events, I have considered all of the testimony, and make this statement in order that if there is error in this the parties wronged may be in a position to except.

Possibly the first question that should be adverted to is whether the executors had a right to sell the property. There is no express authority given in the will to make sale, but he directed: First, that his debts be paid; and, second, he devised unto his children (naming them) "all the proceeds arising from the sale of my houses and lot in the town of Clio, this to be equally divided between the above named children, after all just debts are paid." I think that by necessary implications this gave the executors power to sell the land, especially when it is admitted by all parties that there was no other way in which to pay his debts, and the executors could not well divide the proceeds among the children until they had disposed of the property. Clarke v. Clarke, 40 S. C. 244, 24 S. E. 202, 57 Am. St. Rep. 675, and other cases. The testimony is clear to the effect that they bid as officials according to their judgment, for the protection of the estate, and not personally. See the testimony of Milton McLaurin, on page 100, and that of T. C. Sherwood, pages 102-105.

Now the question is, therefore, whether executors, having advertised a sale, have power in their discretion to bid the place up to the price they are willing to take for it. It would seem to me it was clear that they would have the right to withdraw the property from the sale, there being no order of court requiring it to be sold at a particular time, and if they could withdraw it from sale, could they, not do what is in effect the same thing—merely bid a higher price for the estate. The advantage is a practical one; for by bidding they might be able to procure the sale at an advantageous price, while a mere withdrawing of the property would prevent any possibility of disposing of it. There is absolutely no testimony that they bought it in personally. It is not a case where a party, who was also administrator and executor, bought it in for himself. In those cases any one interested can raise the question of the legality of the sale, and can have it set aside if it is not fair, or can ratify it and hold the purchaser responsible. Here the testimony is that it was bid in by the executors in their official capacity, was knocked down to them by the auctioneer; no deeds were ever made, and they have always contended that they were acting in their official capacity. No one has objected to this except Mrs. Markey, and I do not think it lies in her mouth to object to the executors having taken this step, when she had a proclamation made at the sale that whoever bought it would take an insecure title. It would seem to me that it would havebeen the duty of the executors, when the property did not bring what they had regarded it to be worth, either to withdraw the sale, or to have it bid in for the estate. However, if I am wrong as to the will giving power to the executors to sell the land, then the attempted sale by them would be void, and the result would be the same.

Now as to the question of the compensation of Mrs. Markey. A great deal of the testimony is dependent for its relevancy upon the initial determination whether there is a contract either express or implied in the case. Both parties have cited the case of Ex parte Aycock as giving the law which prevails as to services, furnishing of board, etc., between parents and children and such intimate relatives. Whatever may be its foundation, I think it beyond a doubt that it is the rule that services between such intimate relatives as parent and children are presumed to have been rendered from affection, and not from any expectation of being paid for them, and a mere quotation of tlio cases cited will sufficiently show it.

Ex parte Aycock, 34 S. C. 257, 258, 13 S. E. 451: "It seems to us that the true rule upon the subject is that where a child renders service to his parents, the presumption is that such service was rendered in obedience to the promptings of natural affection, and not with a view to compensation; but that such presumption may be rebutted by positive and direct evidence that such is not the fact, and that mere loose declarations on the part of the parent that the child ought to be paid for his services, or that he intended or wished him to be paid, will not be sufficient to rebut the presumption. It must appear, either that there was an express agreement between the parties providing for specific or reasonable compensation, or that the circumstances should show clearly that the parent had not only intended to pay something, but had assumed a legal obligation to do so."

The rule in this case was ratified as late as 1903 in Wessinger v. Roberts, 67 S. C. 243, 244, 45 S. E. 169, 170, where the statement is made as follows: "Services of the nature described by the witnesses, rendered by a daughter to a suffering mother, though very onerous, exhausting and unpleasant, are presumed to be given and received as expressions of self-sacrificing devotion. It is true, there was evidence to the effect that much of the service was rendered while the mother and daughter were not members of the...