Sumter v. American Sur. Co.
| Decision Date | 23 January 1935 |
| Docket Number | 13984. |
| Citation | 178 S.E. 145,174 S.C. 532 |
| Parties | SUMTER et al. v. AMERICAN SURETY CO. et al. |
| Court | South Carolina Supreme Court |
Appeal from Orangeburg County Court; B. H. Moss, Judge.
Action by Roy Sumter and others against the American Surety Company and another wherein named defendant alone answered the complaint. From a judgment for plaintiffs on directed verdict, named defendant appeals.
Affirmed.
Lide & Felder, of Orangeburg, for appellant.
A. H Moss and P. F. Haigler, both of Orangeburg, for respondents.
Clarence Sumter, a soldier in service in the World War, died overseas leaving of force a policy of insurance of which his father Demus Sumter, was the beneficiary, to whom the proceeds of the policy were paid. Demus thereafter died leaving unexpended, of this insurance the sum of $1,024.70, which, under the federal law, reverted to the estate of Clarence Sumter.
Demus Sumter was twice married. His first wife was named Ann; his second wife was named Della. Upon his death Della Sumter, Ada Belle Sumter, Annie Lee Sumter, Rebecca Pendarvis, Demus Sumter, Forden Sumter, Herbert Sumter, Mattie Moorer, and Ezekiel Sumter, styling themselves "heirs at law and distributees of Clarence Sumter, deceased," petitioned the probate court to appoint Mr. H. H. Stokes administrator of the estate of the said decedent, which petition was granted. The defendant American Surety Company of New York became surety for the administrator.
The estate was duly administered and the residue of the funds thereof, after the payment of debts and expenses, was paid to those persons who signed the petition for the appointment of the administrator, and styled themselves "heirs at law and distributees of Clarence Sumter." After proper publication of notice, the administrator filed his final accounting and was duly discharged of his trust.
Thereafter this action was brought by the plaintiffs, who allege that they are the heirs at law and distributees of Clarence Sumter, deceased, and together are entitled to the sum of $629.96, which remains of the estate after the payment of debts and expenses of administration; that this sum was paid out by the administrator to persons not entitled thereto, in violation of the conditions of his bond.
The defendant American Surety Company alone answered the complaint. It alleges that the administrator duly performed the duties of his trust and was regularly discharged therefrom and relieved of liability after final accounting; that by the terms of the bond, the administrator contracted to hold the surety harmless from and against every claim of every nature whatsoever. It prayed that the administrator, H. H. Stokes, be made a party to the action and required to come in and defend it. It appears from the record that the administrator was made such party, but it does not appear that he filed an answer.
The cardinal issue of the case is made by the claim of the plaintiffs that they are the children and grandchildren of Demus Sumter and his first wife, Ann, and that they, as the brothers and sisters and nephews and nieces of Clarence Sumter by the whole blood, are alone entitled to inherit from him; that the administrator has paid the funds of the estate to Della Sumter and her children, who are the stepmother and brothers and sisters of the half blood of Clarence Sumter.
The case was tried twice in the county court of Orangeburg county by Judge B. H. Moss and a jury. At the first trial there was a verdict for the defendants, which was, on motion, set aside. At the second trial, when the testimony was closed, his honor directed a verdict for the plaintiffs.
There was no appeal from the order granting a new trial.
The appeal from the judgment on the directed verdict is predicated upon two exceptions, viz.:
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