Witherspoon v. Stogner

• Decision Date: 25 January 1937
• Docket Number: 14419.
• Citation: 189 S.E. 758,182 S.C. 413
• Parties: WITHERSPOON v. STOGNER (three cases).
• Court: South Carolina Supreme Court

189 S.E. 758

182 S.C. 413

WITHERSPOON v. STOGNER (three cases).

No. 14419.

Supreme Court of South Carolina

January 25, 1937

Appeal from Common Pleas Circuit Court of Lancaster County; G. Dewey Oxner, Judge.

Separate actions by Bartlett Jones Witherspoon by Mary Dunnom Witherspoon, his guardian ad litem, by Marion Sims Witherspoon, and by Mary Dunnom Witherspoon, against John F Stogner, administrator of the estate of Mrs. L. K Witherspoon, deceased, John T. Stevens, and W. G. Stevens. From an order referring the cases to a special referee defendants John T. Stevens and W. G. Stevens appeal.

Affirmed.

The order of Judge Oxner follows:

The three above-entitled causes came on to be heard before me upon motions, duly noticed by attorneys for plaintiffs, for an order of reference in each. Said motions were resisted by the attorneys for the defendants John T Stevens and W. G. Stevens. Each of the named plaintiffs is an heir at law and distributee of the estate of his or her father, Marion S. Witherspoon, who died intestate in Lancaster county, S. C., in 1916. On October 25, 1916, Mrs L. K. Witherspoon was duly appointed administratrix of said intestate estate, with John T. Stevens and W. G. Stevens as sureties upon her administration bond. These actions were commenced November 27, 1935, and as originally brought, each was against Mrs. L. K. Witherspoon, John T. Stevens, and W. G. Stevens, as parties defendant. Thereafter, to wit, January 3, 1936, Mrs. L. K. Witherspoon died intestate and in default; she having theretofore failed to plead or appear in any manner.

After the death of Mrs. L. K. Witherspoon, John F. Stogner was, on the 15th day of February, 1936, duly appointed the administrator of her estate, and thereafter, on March 24, 1936, upon motion of plaintiff's attorneys, duly consented to, I passed an order substituting said John P. Stogner as administrator as a party defendant in lieu of his intestate, the said Mrs. L. K. Witherspoon.

While there are three separate and distinct causes, the respective complaints, answers, and motions are practically identical, so that the issues and questions presented in each of said causes for any decision are identical, making necessary only one decision and this one order, which is applicable to and decisive of each said motion.

The motions were originally noticed to be heard before me at Chester, but, by agreement of counsel, were marked heard and thereafter fully presented and ably argued before me at York, on April 13, 1936. I took the matter under advisement, and permitted counsel for the respective parties to file written briefs supplementing the oral arguments and authorities cited at the hearing.

Careful consideration of the pleadings herein as a whole has convinced me that each of these actions is in equity and seeks in behalf of each plaintiff as an heir at law and beneficiary of the estate of Marion S. Witherspoon, deceased, an accounting from the administratrix of said estate of her acts and doings with respect to the assets thereof; and that the defendants John T. Stevens and W. G. Stevens are made parties thereto by reason of their being sureties on her administration bond.

Each complaint clearly and distinctly alleges the existence of the trust relationship, the necessity for an accounting, seeks and demands such accounting and judgment for such sum of money as is by said accounting shown to be justly due and owing to plaintiff.

That a fiduciary relationship exists between each heir or beneficiary of an estate and the administratrix thereof is fundamental. It is also fundamental that each such cestui que trust has the right to demand by a suit in equity an accounting at the hands of such trustee, as has been done in these actions, and that thereupon it becomes the duty of such defendant trustee to render a full, fair, and impartial accounting with respect to all matters pertaining to said estate.

Proper consideration of the pleadings in any cause requires that they be considered as a whole. Mortgage Loan v. Townsend, 156 S.C. 203, 152 S.E. 878; Nix v. Harley, 3 Rich.Eq. (24 S.C.Eq.) 379.

Furthermore, since the case of Taylor v. Taylor, 2 Rich.Eq. (19 S.C.Eq.) 123, which specifically overrules the old and contrary doctrine announced in Teague v. Dendy, 2 McCord, Eq. (7 S.C.Eq.) 209, 16 Am.Dec. 643, and other cases decided prior thereto, the courts of this state have recognized that in a suit for an accounting against an administrator, the sureties are proper parties thereto. See, also, Burnside v. Robertson, 28 S.C. 583, 6 S.E. 843, and Kennedy v. Adickes, 37 S.C. 174, 15 S.E. 922, in which last case Mr. Justice McGowan, speaking for the court, said: " * * * the modern practice is to implead the surety in the original action for account, which would seem to be the better practice; for the double reason that thus the whole matter is accomplished by one action instead of two, and the surety, who is certainly interested in the result, may be heard upon the subject of the accounting in the first instance."

In the light of these well-recognized principles, I am convinced that each of the plaintiffs herein has, as a cestui que trust, properly brought a suit in equity against the trustee for an accounting and has properly impleaded the sureties on the administration bond.

Nor do I consider the cases of Beatty v. National Surety, 132 S.C. 45, 128...