Want v. Alfred M. Best Co.

• Decision Date: 13 October 1958
• Docket Number: No. 17463,17463
• Citation: 233 S.C. 460,105 S.E.2d 678
• Parties: Fannye M. WANT, Individually and as Executrix of the Estate of Samuel Want, Deceased, Plaintiff-Respondent, v. ALFRED M. BEST COMPANY, Inc., et al., Defendants--Respondents, and United States of America, Defendant and Intervening Plaintiff--Appellant.
• Court: South Carolina Supreme Court

Page 678

105 S.E.2d 678

233 S.C. 460

Fannye M. WANT, Individually and as Executrix of the Estate of Samuel Want, Deceased, Plaintiff-Respondent, v. ALFRED M. BEST COMPANY, Inc., et al., Defendants--Respondents, and United States of America, Defendant and Intervening Plaintiff--Appellant.

No. 17463.

Supreme Court of South Carolina.

Oct. 13, 1958.

N. Welch Morrisette, Jr. ,U. S. Atty., Columbia, Thomas P. Simpson, Asst. U. S. Atty. Charleston, for appellant.

Royall & Wright, McEachin, Townsend & Zeigler, Willcox, Hardee, Houck & Palmer, and William H. Blackwell, Florence, James P. Mozingo, III, John L. Nettles, Paul A. Sansbury, C. E. Gardner, Robert L. Kilgo, Jerome F. Pate, Paulling & James and John P. Gardner, Darlington, Franklin G. Burroughs, Conway, Joseph L. Nettles, Columbia, Rosen & Rosen, Georgetown, and Robert W. Shand, Hartsville, for respondent.

LEGGE, Justice.

The United States, originally a defendant and later intervening plaintiff in this action to settle the insolvent estate of the late Samuel Want, appeals from a circuit decree which, affirming a special referee's first report,

(1) adjudged barred certain claims based upon alleged transferee and fiduciary liability of Samuel Want for estate and gift taxes due by the estate of his brother, Jacob A. Want, of Which Samuel had been co-executor;

(2) disallowed certain of its claims based upon alleged transferee and fiduciary liability of Samuel Want for income taxes due by the estate of his said brother;

(3) approved certain disbursements made by Samuel Want as co-executor of his said brother's estate; and

(4) rejected its claim of priority over certain other creditors of Samuel Want's estate.

Samuel Want, a prominent lawyer of Darlington, South Carolina, died testate on December 9, 1953. His widow, Fannye M. Want, qualified as executrix and duly published the required notice to creditors. On January 3, 1955, more than eleven months having elapsed since completion of such publication, she instituted this action, joining as defendants all persons who had filed claims against the estate. In her complaint she alleged:

(1) That pursuant to an order of the Probate Court for Darlington County she had had an audit of her decedent's affairs made by a firm of certified public accountants, and their audit had been filed in said court.

(2) That the assets of the estate had been inventoried and appraised, and the inventory and appraisement had been filed in the said Probate Court.

(3) That the Probate Court had not undertaken to settle the affairs of the said estate, or to pass upon the validity of claims filed against it; and that the interests of all concerned would be best served if the Court of Common Pleas would accept jurisdiction, pass upon all claims, and settle the estate.

(4) That she had received, and was chargeable with, funds collected for the estate (which she itemized) aggregating $90,176.33, from which she had made expenditures (also itemized) amounting to $18,848.12, leaving a balance of $71,328.21, including an item of $3,080.08 which Darlington County Bank & Trust Co. had, without authority from the plaintiff or from the Probate Court, withdrawn from the account of Samuel Want in said bank after his death and placed in an escrow account the bank claiming this fund as beneficiary of a constructive trust.

(5) That all of the personal assets of the estate had been liquidated except:

(a) Three notes and mortgages, appraised at $7,459.44;

(b) Unpaid balances due the estate from sales of parts of decedent's law library and office furniture, aggregating $1,494.20;

(c) Fees, some contingent, and all of doubtful collectibility, due decedent for legal services;

(d) A disputed claim, appraised at $2,531.98, secured by assignments (only one of which was in writing) of policies of insurance on the life of one Sam J. Woodward;

(e) A deposit of $100 in First Federal Savings & Loan Association, Darlington; and

(f) $43 due from purchaser of one share of stock of Darlington Theaters, Inc.

(6) That the following claims had been filed against the estate:

                (a) Open accounts (6)                                                  $ 278.13
                (b) For return of fees allegedly unearned (3)                            616.66
                (c) By persons claiming as beneficiaries of constructive trusts in    11,622.64
                  decedent's bank account (5)
                (d) By persons claiming property as beneficiaries of trusts ex       301,823.93
                  maleficio (52)
                (e) Claim as debt due United States                                    5,000.00
                (f) Funeral expenses                                                   1,030.00
                                                                                    -----------
                                                                                    $320,371.36
                

(7) That the audit of decedent's affairs showed that at the time of his death he had on hand funds belonging to L. H. Sompayrac (a defendant) amounting to $1,243.66, for which the said Sompayrac had not yet filed, but had informed the plaintiff that he would file, a claim.

(8) That decedent's son, LeRoy M. Want, had voluntarily paid some small open accounts due by the estate, aggregating $562.96, and also salaries of decedent's employees from December 1 through December 9, 1953, amounting to $247.59.

(9) That certain stock certificates, registered in the name of Samuel Want, had been pledged by him as security to his note given to South Carolina National Bank, on which there was, at the time of his death, an unpaid balance of $9,090. That the plaintiff, under authority of an order of the Probate Court, had paid this obligation and recovered said securities, the value of which far exceeded the debt. That thereafter, in the course of the audit of decedent's affirs, it had been found that his records indicated that he had held these stocks in trust for the defendant Marie K. Haynsworth. That since decedent's death the plaintiff had received dividends on these stocks to the amount of $1,132.75, which sum she was holding in a special account in Darlington County Bank & Trust Co. That the said Marie K. Haynsworth, asserting a constructive trust in said stocks, had filed a claim against the estate, demanding delivery of the stocks and payment to her of the dividends received thereon since decedent's death.

(10) That from the audit of decedent's affairs it appeared also that certain certificates of stock registered in his name had been held by him in trust for the defendant Lurline W. McCullough, who has made claim for them and for the dividends collected by the plaintiff thereon, amounting to $55.10 which have been deposited in a special account in Darlington County Bank & Trust Co.

(11) That the personal assets of the estate being insufficient to pay debts and expenses of administration, resort must be had to decedent's real estate, consisting of two parcels in the city of Darlington; and that the same should be sold under the direction of the court and the proceeds, after provision for dower and homestead, applied to the payment of the debts of the estate. Plaintiff also claimed homestead for herself and her son in the personal assets of the estate.

(12) That should the Darlington County Bank & Trust Co. fail to establish, in this action, its claimed right to the sum of $3,080.08 withdrawn by its as before mentioned from the account of Samuel Want, it should be required to account for it to his estate.

Prayer was:

(1) For admeasurement and allotment of dower and homestead;

(2) That the defenants be required in this cause to prove their claims against the estate;

(3) That the court fix the amount of commissions to be allowed plaintiff as executrix, and a reasonable fee for the estate's attorneys; and

(4) For approval of plaintiff's accounting to date and, upon complete liquidation of the assets of the estate, approval of her accounting then to be made, and for directions as to the distribution to the creditors.

Of the answers of the several defendants claiming as beneficiaries of trusts ex maleficio, the transcript of record reproduces three as typical, viz.:

Lurline W. McCullough: That she placed in the hands of Samuel Want $24,349.05, in trust to be invested by him for her; that there was withdrawals from and charges against said sum aggregating $12,484.52, leaving a balance of $11, 864.53 held in trust by Samuel Want for this defendant; that he did not invest the said sum for her, but without her knowledge or consent misappropriated the same to his own use and thereby established a constructive trust ex maleficio, under which she is entitled to, and has filed, a claim against his estate in the amount of $11,864.53, with interest. Further, that with funds placed by her in his hands for investment, he purchased 20 shares of the capital stock of Technicolor, Inc., and 3 shares of the capital stock of Armstrong Cork, Co., certificates for which were issued in his name and by him endorsed in blank for transfer; that dividends thereon were paid to her until his death; that she is the sole owner of said certificates and is entitled to their possession and to dividends received thereof since the death of the said Samuel Want; and that she has filed claim therefor.

Marion McMillan: That she deposited with Samuel Want for the purpose of investment for his in sound securities $684.32; that he used said funds for other purposes without her consent; and that she is thereby entitled to, and has filed, as beneficiary of a trust ex maleficio, a prior and preferred claim against his estate in the amount of $684.32.

J. C. Flowers: That Samuel Want collected for this defendant, on a mortgage obligation, $337.52; that the said Samuel Want did not remit the amount so collected, but place the same in his own account; and that therefore 'a lien is impressed upon all of the assets of the late Samuel Want for the payment of this indebtedness, regardless of the source of said assets, and that this defendant, is,...