Sullivan v. Latimer

• Decision Date: 19 April 1893
• Citation: 17 S.E. 701,38 S.C. 158
• Parties: SULLIVAN et al. v. LATIMER et al., (two cases.)
• Court: South Carolina Supreme Court

17 S.E. 701

38 S.C. 158

SULLIVAN et al. v. LATIMER et al., (two cases.)

Supreme Court of South Carolina

April 19, 1893

Appeal from common pleas circuit court of Greenville county; I. D Witherspoon, Judge.

Two actions, which were tried together, one by Charles M Sullivan against Joseph P. Latimer and John H. Latimer in their own right and as executors of the last will and testament of Hewlett Sullivan, deceased, John D. Sullivan and another; the other by Thomas J. Sullivan against the aforementioned defendants and Charles M. Sullivan and another. From a judgment overruling their exceptions to, and confirming the report of, the special master, John D. and Charles M. Sullivan appeal. Modified.

R. C. Watts, Perry & Heyward, and Westmoreland & Haynsworth, for appellants.

J. A. Mooney, Wells & Orr, W. H. Irvine, and Benet, McCullough & Parker, for respondents.

McGOWAN J.

These cases were brought for a settlement of the estate of Hewlett Sullivan, deceased, and were heard together. The record is enormous, consisting of nearly 300 pages of printed matter with an addition of half as many of printed argument. The various matters involved are in some confusion, and, in order to have a clear view of the points to be decided, it will be necessary to give a condensed outline of the principal facts. Hewlett Sullivan was a bachelor, and lived to the great age of more than 80 years. Having energy and good business capacity, he accumulated a considerable fortune, which, as was supposed, at the time of his death, amounted to more than a hundred thousand dollars. His nearest relations were four nephews, viz. Joseph P. Latimer and John H. Latimer, sons of a sister, and Charles M. Sullivan and John D. Sullivan, sons of a deceased brother; and these are the principal litigants over his property. On March 20, 1880, he executed his will, naming all four of his aforesaid nephews as executors. Becoming feeble with age and disease, in the winter of 1883 he went to live with his favorite nephew, Dr. Joseph P. Latimer, where he remained, with increasing infirmities, until he died on May 30, 1887. While he was living in the family of Dr. Latimer, on March 15, 1887, he made a codicil to his will, revoking the appointment of the Sullivan brothers as executors of his will, and leaving the Latimers as his sole executors. They immediately after his death proved the will, qualified as executors, and took possession of the entire estate. By his will the testator gave devises and specific legacies to several other persons, and then (1) to the wife and children of Dr. Joseph P. Latimer he devised the Arnold Mill tract of land, where the family resided; (2) to John H. Latimer for life, with limitation over to his heirs, he devised the "Mason Stone" tract of land and $3,000, on condition that he should assist in taking care of his mother; (3) to John D. Sullivan $4,000; (4) and to Charles M. Sullivan $2,000; and then directed that the residuum of his estate, consisting principally of six or eight separate tracts of land, should be equally divided between his four nephews aforesaid. The appellants, Charles M., and John D. Sullivan, instituted these proceedings against the executors, charging maladministration; that the executors were collecting the estate, but paying neither debts nor legacies, refusing to charge themselves with certain judgments which the testator at the time of his death held against each of them, but, on the contrary, in addition to many free gifts made to them by the testator in his lifetime, and the provisions of his will so liberal to them, they, the said executors, were now raising charges against his estate for alleged services, medical attention, and nursing during the latter years of his life, so enormous as to threaten to swallow up a large part of the estate; praying for an account, injunction, receiver, etc. Several unsuccessful efforts had been made to obtain an account and settlement; but in 1889 his honor, Judge Hudson, made an order appointing L. K. Clyde, Esq., as special referee, with directions--First, to take the testimony, and state the accounts of the executors to the date of the reference, with a view to ascertain how the executors were discharging their duties, and especially to take the testimony as to the indebtedness of each of the said executors to the said deceased, if any there be, etc., and, second, the said special referee is charged to require the said executors, and each of them, to make proof and by competent testimony to establish before him their respective claims against the said Hewlett Sullivan, the deceased testator, and, by striking a balance, ascertain and report to this court how much, if any, the deceased at the time of his death was indebted to each of the executors, etc. The special master held many references, and took an enormous mass of testimony, most of which was in reference to the individual claims of the executors against the estate of their testator; and made a report, of which the following are substantially the conclusions reached: First. As to the individual claims of the executors. "The special master will not undertake to discuss the evidence in detail,--it is too voluminous,--but will content himself by saying that he has most carefully and laboriously considered and analyzed the same, and finds as follows: (1) That for many years of his life, and especially during the last ten or fifteen years preceding his death, valuable services were rendered to Hewlett Sullivan in the conduct and management of his business affairs by Dr. J. P. Latimer; (2) that for and during said period, more or less frequently, Hewlett Sullivan received at his hands skillful and valuable medical treatment; (3) that during the last years of his life he was boarded by said Dr. J. P. Latimer in his family, and during his spells of sickness was nursed and cared for by him and his family; (4) that during the last seven or eight years of the life of Hewlett Sullivan, like valuable services were rendered him in attending to and looking after his business by John H. Latimer; (5) That these services were rendered by both Dr. J. P. Latimer and John H. Latimer, at the request of Hewlett Sullivan, and with the mutual expectation and understanding that they were to be compensated therefor. In the judgment of the special master, these conclusions are clearly sustained by the evidence. The only two questions remaining are: (1) How were they to be compensated,--by legacy, or were they to be paid as other creditors? And (2) if the claims are legal demands against the estate, what amounts have these parties shown themselves entitled to recover? *** The special master is forced to the conclusion that the mutual understanding was that these claims were not to be paid by legacy or devise, but were intended to be paid as the claims of other creditors. He sustains the plea of the statute of limitations, and holds that the claims, prior to May 30, 1881, (six years,) are barred, and the question of compensation under the will, executed in 1880, cannot arise. What, then, is the value of their services, respectively, as established by the proof? Without attempting to discuss the evidence, the special master will content himself with merely stating the conclusions reached: First. That the services of Dr. J. P. Latimer rendered to Hewlett Sullivan in attending to his business for the six years last preceding his death, are worth five hundred dollars per year for said period, --$3,000; second, that his services as physician to Hewlett Sullivan for said period of six years are worth fifteen hundred dollars per year,--$9,000; third, that the board and nursing Hewlett Sullivan by Dr. Latimer for the last four years of his life are worth five hundred dollars a year for each year of said service,--$2,000; fourth, that the services of John H. Latimer rendered to Hewlett Sullivan for and during the six years last preceding his death are worth three hundred and fifty dollars per year,--$2,100." And he found as matter of law: "First, that the claims of the executors are not paid or satisfied by benefits received under the will of the testator, by presumption or operation of law; second, that their claims are subsisting legal demands against the estate of Hewlett Sullivan; third, that the portions of their claims which arose or were contracted prior to May 30, 1881, are barred by the statute of limitations." As to the accounting of executors, the special master proceeds: "It is contended that the executors should account for certain judgments held by their testator against them, as moneys in their hands. It appears from the evidence that Hewlett Sullivan bought a judgment held by one Grier against Dr. Latimer, and gave it to him; that there was no written assignment or transfer of the judgment, but that he placed the judgment, or something that represented or was intended to represent it, in the hands of Dr. Latimer, stating that he gave the judgment to him. The evidence also shows that he had two judgments against John H. Latimer and others; that he instructed Mr. Mooney, who was his attorney, to mark these judgments 'Satisfied as to John H. Latimer;' that they were so marked, the one in his lifetime, the other after his death; that the failure to mark this judgment 'Satisfied' before his death was due to oversight on the part of Mr. Mooney. Under the doctrine laid down in Miller v. Newell, 20 S.C. 123, the special master thinks it clear that a judgment may be assigned or transferred by parol; that symbolical delivery is sufficient. It was Mr. Mooney's duty, under the instructions, to mark this judgment 'Satisfied.' The authority received was sufficient. What ought to have been done, equity will consider as done. The special master is of opinion,...