Smith v. Pearson

• Decision Date: 10 July 1947
• Docket Number: 15968.
• Parties: SMITH et al. v. PEARSON et al.
• Court: South Carolina Supreme Court

43 S.E.2d 479

210 S.C. 524

SMITH et al. v. PEARSON et al.

No. 15968.

Supreme Court of South Carolina

July 10, 1947

O. L. Long, of Laurens, and J. M. Nickles, of Abbeville, for appellants.

Babb & Babb, of Laurens, for respondent.

OXNER Justice.

Miss Mary Maude Pearson died intestate on July 16, 1946. She owned a lot in the town of Clinton, South Carolina, upon which there are two houses, and a tract of land near Clinton containing approximately 120 acres. In addition to this real estate, she left some personal property consisting principally of jewelry, household goods, Government bonds and a certificate of deposit in a local building and loan association.

Her nearest relatives were first cousins. On August 8, 1946, Mrs Willie Bryson Perry, Miss Emma Harris and Thomas Young Harris were appointed administrices and administrator, respectively of this estate by the Probate Judge of Laurens County. Both Miss Harris and Mr. Harris were first cousins of the deceased and are among the heirs at law and distributees of her estate. The administratrices and administrator duly qualified and thereafter sold the personal property. The proceeds of sale together with the certificate of deposit amounted to $3185.40. In the meantime, a number of claims targely growing out of the last illness and death of the deceased, were filed.

On November 7, 1946, the two administratrices and certain of the heirs at law commenced this action for the purpose of selling the real estate. Thomas Young Harris, individually and as administrator, was made a party defendant along with two other heirs at law and all other persons claiming an interest in the estate as heirs at law or otherwise. After stating the death of the intestate, the names of the heirs at law and distributees and a description of the real estate in the first three paragraphs of the complaint, plaintiffs alleged (paragraph four): 'That the personal assets of the estate have been reduced to cash but there are a number of threatened claims against the said estate which will probably be filed and there is a possibility that the personal assets will be unable to pay the claims, and in the opinion of the plaintiffs it is an ideal and advantageous time to sell the real estate for partition and division subject to the payment of any claims which might be established, and they desire that the real estate be sold at this time, that all of the assets of the estate of Miss Mary Maude Pearson be marshaled, all claims duly proven paid therefrom, and the balance be distributed among the parties to this action who are duly entitled to receive same under the orders of this Court.'

The prayer is to the effect that the property be sold at public auction and the proceeds of sale, after payment of costs, including a reasonable fee to plaintiffs' counsel, be turned over to the administratrices and administrator for division, after payment of all claims against the estate, among the heirs at law. A guardian ad litem was duly appointed to represent the interest of any unknown infant defendants or other persons under disability. He joined in the prayer for the sale of the lands. Thomas Young Harris, individually and as administrator, filed an answer in which he alleged 'that the administrators have a year within which to ascertain the indebtedness against the estate and until same is ascertained and determined it will be impossible to say whether the proceeds of the personal estate will be sufficient to pay the same or not', and that the real estate 'should not be sold unless it is ascertained that same is necessary for the payment of indebtedness duly established against the estate as liabilities thereof and that personal assets are insufficient to pay such claims.'

The case was referred to a referee before whom testimony was taken in January, 1947. At the outset of the hearing counsel for Thomas Young Harris stated that the complaint contained two causes of action, one for partition and the other 'for sale of land in aid of personal assets for payment of debts', and moved that plaintiffs be required to elect upon which of these causes of action they would go to trial, to which plaintiffs' counsel replied: 'I am not required to elect. My complaint only states one cause of action, that of marshaling of assets and distribution of the proceeds of the sale to the parties entitled thereto. Suit to marshal assets and for sale of the lands.' The referee at that time made no ruling on the motion. Testimony was then taken in an effort to establish the names and whereabouts of those who would constitute the heirs at law and distributees of the estate. It appeared that defendant Buddy Pearson was a first cousin of the deceased and would inherit if living, but had been unheard of for a period of twenty or thirty years. Apparently it was for this reason that any unknown heirs at law were made parties defendant. Plaintiffs also sought to show that it was then an advantageous time to sell real estate and that later the real estate market would not be so favorable. However, only one of the witnesses offered had had any experience in handling real estate and that was in North Carolina. The remaining testimony related to 'threatened' claims against the estate, from which it appeared that the wife of defendant Harris would probably file a claim of 'several thousand dollars' for nursing the deceased at various times since 1935. No effort was made to show that a partition in kind of the premises was impracticable or that there was any other necessity for an immediate sale except the general assertion that the real estate market would probably go lower.

The referee filed his report on January 27, 1947. He found that the claims then filed against the estate amounted to $1,479.87; that Mrs. Harris (wife of defendant Thomas Young Harris) would probably file 'a claim for several thousand dollars and the record contains inquiries of other parties who are threatening to file claims'; 'that real estate is now bringing a very good price indeed but not as good as it was sometime back and that it is a good time to sell this real estate'; and that it would be 'for the best interest of all the parties concerned, including the creditors', for the real estate to be sold at the earliest possible time. He concluded as a matter of law that the motion to require plaintiffs to elect made at the beginning of the hearing should be denied because no written notice of the motion was given; that the sufficiency of the complaint was not challenged by demurrer; 'that the complaint contained only one cause of...