Andrews v. United States Fidelity & Guaranty Co.

153 S.E. 745, 154 S.C. 456, 1930 S.C. LEXIS 37

Opinions

The opinion of the Court was delivered by

Mr. Justice Carter.

This action was commenced in the Court of Common Pleas for Chester County, June 2, 1926. As a statement of the history of the case, the admitted facts, a synopsis of the pleadings, a brief statement of the findings and conclusion of the circuit Judge, the Court adopts the agreed statement •of counsel contained in the Transcript of Record, as follows :

“This is an action upon a guardian’s bond. The plaintiff is the ward of the guardians who executed the bond. The bond is in the sum of fifteen thousand ($15,000.00) dollars, is in due form, and was duly executed and filed, on January 29th, 1913, in the office of the probate Judge of Chester County, by Samuel E. McFadden, A. G. Brice and the United States Fidelity and Guaranty Company. The condition of the bond is in the usual form, to the effect that if the said Samuel E. McFadden and A. G. Brice shall faithfully execute their trust, as guardians of the person and estate of Coralie Means during her minority, and deliver and pay over to her when she shall come of age the estate due her, then the obligation to* be void; else to remain in full force. Upon the execution of said bond Samuel E. McFadden and A. G. Brice were duly issued letters of guardianship jointly and entered upon the discharge of the duties of their trust as guardians of the estate of said Coralie Means, a minor then of the age of ten years. From January, 1913, to January, 1918, the guardians filed in the office of. the probate Judge five (5) annual returns, showing their receipts and disbursements as such guardians during the years 1913 to 1917, inclusive. On January 30, 1918, A. G. Brice, one of the guardians, died. Thereafter on September 11, 1918, the executrix of the will of A. G. Brice, deceased, turned over to Samuel E. McFadden, the surviving guardian, all of the securities constituting the estate of the minor, Coralie Means, which had been in the hands of her decedent, A. G. Brice, at the time of his death, and took McFadden’s receipt in writing therefor, without formal court procedure or formal notice to the bonding company. After the death of A. G. Brice no annual returns were filed in the office of the probate Judge by Samuel E. McFadden, surviving guardian. On August 6, 1924, Coralie Means became of full age. She thereupon made demand upon her guardian, Samuel E. McFadden, for an accounting and settlement. No accounting and settlement were made by her said guardian. On January 6, 1925, -the said Samuel E. McFadden died, without having accounted and without having paid over to his ward any part of the corpus of her estate, except the corpus was reduced by encroachment from ten thousand two hundred ninety-five and 62/100 ($10,295.62) dollars to nine thousand and eight-hundred twenty-nine and 29/100 ($9,829.29) dollars, the maximum amount claimed in the complaint. McFadden’s estate was hopelessly insolvent. His personal representative found among his effects no moneys or securities belonging to or applicable to the payment of the amount due the ward on account of the corpus of her estate. From the books and papers of the deceased guardian, Samuel E. McFadden, his personal representative, in response to demand made, furnished to the plaintiff statements, made up in the form of annual returns, showing, or attempting to show, the amount of the corpus of the ward’s estate in the hands oí the said guardian on January 1, 1925, to be the sum of eight thousand five hundred and nine and one/100 ($8,509.01) dollars.

“On June 2, 1926, the ward, Coralie Means, commenced this action against the United States Fidelity and Guaranty Company, one of the makers of and obligors upon her guardian’s bond, and Mary G. Sledge, as administratrix D. B. N. and C. T. A., of the estate of Samuel E. McFadden, one of her deceased guardians. In her complaint she alleges, in substance, the facts which are hereinabove set out, and further alleges, in substance, that the corpus of her estate which had come into the hands of her deceased guardian, Samuel E. McFadden, after the death of his co-guardian, A. G. Brice, amounted in value to the sum of at least nine thousand eight hundred and twenty-nine and 45/100 ($9,829.45) dollars, and that the condition of the bond filed by her guar dian for the protection of her estate had been breached by the failure of her said guardian, Samuel E. McFadden, to defend and protect her estate, to render true and correct annual accounts to the probate Judge, and to account for and deliver and pay over to her when she came of age the value or amount of the corpus of her estate, with accrued interest, to her damage in the sum of $9,829.45, with interest thereon from January 1, 1925.

“The defendant, United States Fidelity & Guaranty Company, interposed a demurrer to the complaint based upon the grounds:

“(1) That the personal representative of A.- G. Brice, deceased, was a necessary party.

“(2) And that it appeared upon the face of the complaint that the guardians’ account had not been adjusted and that no specific sum had been decreed by the probate Court to be paid over by the plaintiff. This demurrer was overruled, but on July 30, 1926, on motion of the defendant, United States Fidelity & Guaranty Company, an order was made requiring that Mrs. Sallie M. Brice, executrix of A. G. Brice, be made a party-defendant. The order making Mrs. Brice, as executrix, a party was made without notice to her. Pursuant to this order, the summons and complaint were served upon Mrs. Sallie M. Brice, as executrix of A. G. Brice, deceased, as a party defendant.

“Each of the parties-defendant answered in due time. The defendant, United States Fidelity & Guaranty Company, as surety, contended in its answer that it was liable only as secondary surety upon the bond. That Mrs. Sallie M. Brice, as executrix of A. G. Brice, was primarily liable by reason of A. G. Brice being joint-maker on the bond, and thereby liable as joint-principal and primary surety. Also that the Brice estate was primarily liable by reason of contract of indemnity contained in the original application for the bond.

“The answer of the defendant, Sallie M. Brice, as executrix of the estate of A. G. Brice, deceased, denied the allegations of the complaint and of the answer of the U. S. Fidelity & Guaranty Company and set up as a defense thereto: (1) That A. G. Brice and S. E. McFadden, as guardians, had faithfully and fully performed their duties and made annual returns each year, which were approved by the probate Court, and that there was no' default during the life of A. G. Brice. (2) That on the death of A. G. Brice, his duties and liabilities terminated, and that S. E. McFadden became, by law, entitled to the sole control and possession of the assets in her hands, which were turned over to him by her, and that S. E. McFadden took sole control and possession thereof and executed his receipt to her for the assets in her hands and that the estate of A. G. Brice was entitled to a discharge as a matter of law and fact by reason of the settlement in full and payment of the assets to the surviving guardian. (3) That the United States Fidelity & Guaranty Company knew, or should have known, of the death of A. G. Brice, and thereafter continued its liability on the bond of S. E. McFadden, as sole surviving guardian, and waived any and all claims or demands against the estate of A. G. Brice; and continued to act as surety for S. E. McFadden as sole surviving guardian, and to collect and demand premiums on his bond, and neglected to require annual returns from S. E. McFadden, and thereby by its negligence became liable for the defaults, of S. E. McFadden. (4) That the application of A. G. Brice to the United States Fidelity & Guaranty Company was the personal, separate and distinct undertaking on his part for his own fidelity under the bond as surety; A. G. Brice’s estate was fully released and discharged, and that his estate is not liable under the said application, which is without consideration and did not bind him as surety for S. E. McFadden and his defaults, and is barred. (5) And that the United States Fidelity & Guaranty Company is estopped by reason of its laches, neglect and failure, after the death of A. G. Brice, to require S. E. McFadden to make annual returns and account; and that she was not liable in any way whatsoever.

“The answer of Mary G. Sledge, as administratrix, C. T. A. D. B. N. of the estate of Samuel E. McFadden, deceased, admitted certain of the allegations of the complaint, but alleged in substance that she had no knowledge or. information sufficient to form a belief as to the true status of the account between plaintiff and her decedent, Samuel E. McFadden, deceased, and that she denied liability of her said decedent’s estate to the plaintiff and demanded strict proof thereof.

“Plaintiff’s attorneys then docketed the case on calendar two. On call of the case in open court on November 12th, 1926, Hon. W. H. Townsend, Judge presiding, ordered that the case be referred to R. E. Douglas, as special referee, ‘To take the testimony offered on all issues raised by the pleadings, to state the account and to report the testimony, together with the findings and conclusions thereon only as to the amount- due the plaintiff, to this Court with all convenient speed.’ At the time of the making of this order, there were present in the Court all of the attorneys of record, except Messrs. Hemphill & Hemphill. From this order of reference, there was no appeal by any party to this suit.

“At the time it was agreed that references should be held immediately and that Judge Townsend should mark the case heard and hear the same in the next two weeks after leaving Chester. The hearing was to be had upon the testimony which was to be taken and to be reported by the special referee. Two references were held in Decmber, 1926, and two in April, 1927, and the report not filed until May 20th, 1927. Although Judge Townsend marked the case heard he never actually heard the case as originally contemplated that he should.

“After the first two references, and on motion of the defendant, United States Fidelity & Guaranty Company, J. Weldon Anderson was made a party-defendant, Mr. Anderson having purchased lands acquired by the joint guardians as mortgagees from the mortgagor. The deed from McFadden, as surviving guardian to Anderson was without any authority of Court.

“This case came for trial before special Judge C. J. Ram-age, on January 16th, 1928. All issues in the case were before the Court at this trial, including the appeal from the referee’s report.

“Over the objection of certain defendants, the Judge submitted four questions to a jury. The jury decided these four questions in favor of the Brice Estate and against the bonding company as to liability on the guardian’s bond. On March 16th, 1928, after motion to set aside the verdict of the jury, Judge Ramage filed a decree affirming the report of the referee as to the amount due the plaintiff in the sum of eighty-nine hundred ninety-nine and 82/100 ($8,999.82) dollars. Decree further held the bonding company primarily liable on the bond and the Brice estate secondarily liable, and that upon payment of the amount due the plaintiff, the payer was subrogated to a one-half interest in the McCluney lands; that the one-half interest in the McCluney lands held by Brice as guardian had never been conveyed to 'Anderson but was in ‘statu quo! And that the party paying the bond would be subrogated to this half interest. There were three motions to amend the decree, but the final holding of the trial Judge is as above stated. The final supplemental decree was filed April 14th, 1928.”

Following the motion of Messrs. Glenn & Glenn, attorneys for the defendant United States Fidelity & Guaranty Company, to set aside the verdict of the jury, his Honor, Judge Ramage, filed the following decree, dated March 15, 1928:

“This case was marked ‘Heard’ in open court and the same was taken by me under advisement.

“I have been very much concerned and have devoted much study and reading to the issues involved in this case.

“I am.satisfied in the main with the report of R. U. Douglas, special referee, and I adopt his report as a part of my decree herein, except as herein modified. It is a splendid thing to have all the issues passed on by a good lawyer and this practice ought to be more prevalent. I adopt the report but in case anything therein should conflict with the special provisions of this decree, then, of course, the decree must prevail.

“I also refuse to set aside the findings and verdict of the jury herein. I sustain the verdict of the jury and make it a part of this decree so far as United States Fidelity & Guaranty Company is concerned.

“It is ordered that plaintiff have judgment and that the same be entered up in the Clerk’s office for the sum of eight thousand nine hundred and ninety-nine dollars and eighty-two cents, .together with interest on the said amount from January 1, 1925, at seven per cent per annum against Mary G. Sledge, administratrix of the estate of S. E. McFadden, and against the United States Fidelity & Guaranty Company.

“It is further ordered that the estate of A. G. Brice be and the same is hereby declared discharged from all liability, unless the plaintiff should fail to collect out of the United States Fidelity & Guaranty Company and in that case, plaintiff is hereby permitted to bring an action against the estate of A. G. Brice if she should be so advised, but so far as any other party to this action, any further action against the estate of the said A. G. Brice is hereby barred.

“Perhaps I ought to stop right here and let all further proceedings in the case be settled by some other Judge.

“That really would have been the proper method: let plaintiff get or fail to get her relief and then let all other matters and things be settled by subsequent proceedings.

“But under the pleadings in the case and inasmuch as it is understood that I am to pass on all issues raised, I shall proceed to dispose of the case as best I can.

“I refuse to allow McFadden’s estate to be paid anything in this case and disallow any claim of any kind set up* by the said estate; any other course would be taking money from innocent parties who must suffer already too severely by his conduct. I hold that the McCluney mortgage was and is discharged under the ruling of the Supreme Court in the case of Werber v. Cain, 71 S. C., 346, 51 S. E., 123, and other cases on the same subject.

“I hold that McCluney is discharged by the conveyance of the land to Brice and McFadden, guardians.

“The main question in the case from the standpoint of the law is: What part of the land did McFadden convey to Andersons; none or all or one-half ?

“I have read many cases on this question and am frank to say that the question is one over which much darkness and confusion hover.

“It is useless to say that a guardian cannot convey away the real estate, the legal title to which is in the ward. That is elementary. By ‘belonging’ to the ward in the sense of the ward’s having the legal title, is what is meant here.

“It is also clear that when property is willed to a trustee with power to sell, then the trustee can convey the legal title to the property. But in all these cases, the whole thing depends on the terms, language, and conditions set out in the instrument creating the trust relationship and most of the cases confine their decision to the actual terms of the paper writing before the Court in the particular case.

“It is also well settled that what is called the ‘Statute of Uses’ ydll execute or pass over to the cestui que trust the: entire property in the land, unless there be some actual duty or active duty to be performed by the trustee. There is no need for citation of authority for any of these matters.

“As in most other cases, the trouble is not so much to find out what the law is, as to properly apply the law to the facts.

“It seems to me that the reasoning of „ McIver, J., in State v. Evans, 33 S. C., 184, 11 S. E., 697, 698, is determinative of the present case. The conveyance in that case was to C. P. Leslie, Land Commissioner, and it was held that these words did not vest the legal title in the State as it was the manifest object to let the legal title stay in the commissioner so that he might the more easily re-sell the land in small lots. It seems that this was the object of Brice and McFadden in this case. The word Guardian would indicate on its face that there was an active duty to be performed on the part of the guardian at least during the minority of the ward and I think and hold that the word itself imports an active trust that would not become a passive trust till the guardian had made a full settlement with the ward. That appears to be the case here and I so hold.

“Now, another difficult question arises. Did McFadden as surviving guardian have the right to convey the whole fee?

“The cases holding this are those dealing with powers; that the power of sale on the principle of joint tenancy goes to the survivor and that statutes like ours providing for the severing of a joint tenancy, do not apply to a trust relationship, but that the survivor takes the full power to convey the fee by reason of the doctrine of survivorship under the common law relating to joint tenants.

“But here we have not a power but a legal estate. This distinction is of the first importance here.

“We have not only an estate but one that passed to the legal heirs of A. G. Brice under the common law.

“ ‘The death of a trustee named in a deed creating a trust does not destroy the trust, but the oldest son of the trustee becomes his successor, in law, unless the Court names and appoints another trustee.’ Reynolds v. Reynolds, 61 S. C., 243, 39 S. E., 391.

“Chancellor Johnston in Martin v. Price, 2 Rich. Eq., 412, demonstrates this matter yery clearly and shows that the trust goes to. the heir at common law.

“I fail to see how the legal estate that was in Brice could go to his heir at common law and also vest in McFadÜen at the same time.

“As to the right of survivorship: Chancellor Harper in McMeekin v. Brummet, 2 Hill, Eq., 638, says:

“ ‘Any interest, of any sort, in which there may be a joint tenancy, shall be severed by the death of one joint tenant, and the share of the deceased go to his legal representative.’

“So in my opinion as a result of the above cases and the general law on the subject, the Andersons only got the one-half of the land, and the other half, the Brice half, is still in the estate and when-the United States Fidelity & Guaianty Company pays the amount of the judgment to the plaintiff, it will be subrogated to the one-half of the tract of land as a tenant in common with Anderson or rather will have the right to take over this land. And the said United States Fidelity & Guaranty Company, one of the defendants, is hereby given full power to take such steps then ás may be necessary to realize on the said one-half. The Court will protect Anderson in the one-half that could be conveyed by McFadden but not in the one-half that Brice had as trustee and while the right of subrogation will not exist till the money has been paid, yet when the money is paid, the said United States Fidelity & Guaranty Company will then be subrogated to the one-half that is covered by the Brice trust.

“If there be any significance to the words ‘as Trustees’ it cuts both ways for the word as is omitted in the premises of the deed but is used in the habendum.

“Recurring to the Evans case above cited, the language was as follows: ‘Unto the said Charles P. Leslie, land commissioner, his successor or successors, their heirs and assigns forever. * * * (to have and tO' hold lands) to the proper use and behoof of the said party of the second part, his heirs and assigns forever, and the warranty is to the said party of the second part, his heirs and assigns.’ The State cannot maintain an action for the recovery of this land, because the deed does not convey to her the legal title.

“The case says: ‘It would seem that the Legislature never intended that the title to lands purchased by the land commissioner should be taken to the State, but rather to the land commissioner so that re-sale could be readily made by him.’

“Carrigan v. Drake, 36 S. C., page 354, 15 S. E., 339, is in point also. (One of .the best discussions of powers is in 4 Kent Com. (1873) ed. by Justice Holmes at star page 326.) Even if this were simply a power and not an estate as I construe it, it would not survive under the authority of Kent.

“So my conclusions are as follows: Plaintiff is entitled primarily to be paid out of the McFadden estate, but as that estate is admittedly insolvent, the United States Fidelity & Guaranty Company will have to pay the bond; that Brice estate is released so far as the United States Fidelity & Guaranty Company is concerned; that Anderson takes one-half of the land conveyed to the Andersons by McFadden; that when the United States Fidelity & Guaranty Company pays the bond, the said company will be subrogated to the one-half of the land that Brice could have conveyed; that in case the plaintiff fails to get her money out of the United States Fidelity & Guaranty Company, then she can go on to the one-half of the McCluney lands and then on the Brice estate, for while the Brice estate is discharged so far as the United States Fidelity & Guaranty Company is con- earned, that and yet, as a last resort, the said Brice estate will be liable to the plaintiff; this is the case as I see it, and the plaintiff cannot enter up judgment as against the Brice estate and hold it liable on the bond till she has first exhausted the one-half interest in the land of which J. Weldon Anderson holds the other half. Miss Mary G. Sledge, administratrix, has shown that the estate of McFadden is insolvent.

“All positions and exceptions in the record contrary to this decree are overruled.

“Any party to this action may apply at the foot of this decree for such other or further orders as may be necessary to carry out the terms of this decree.

“By paying the bond, I, of course, mean so much of the •bond as is covered by the judgment herein ordered to be entered up.

“I hold that plaintiff could take the one-half of the Mc-Cluney land, but she elects to proceed against United States Fidelity and Guaranty Company, and that this company, when it pays up the judgment, will be subrogated to her right and may move to have a trustee appointed or take any other steps it may be advised to take possession or dispose of that half, and that Anderson already has legal title to the other half.

“C. J. Ramage,

“Special Presiding Judge.

“March 15, 1928.”

After the filing of this decree, motions were made to amend the same by Messrs. Glenn & Glenn, attorneys for the defendant United States Fidelity & Guaranty Company, by Messrs. Glenn & Macauley, attorneys for the defendant, J. Weldon Anderson, and by Messrs. R. B. Caldwell, and Gaston, Hamilton & Gaston, attorneys for the defendant, Sallie M. Brice, executrix of the will of A. G. Brice, upon grounds which need not here be stated. Thereafter his Hon- or, Judge Ramage, issued the following order, correcting and amending his decree dated March 15, 1928:

“Whereas, it appears that the decree dated March 15th, 1928, heretofore filed by me in the above-entitled cause, contains a typographical error in the statement of the amount for which judgment was allowed and ordered in favor of the plaintiff against the defendants, Mary G. Sledge, as administratrix, etc., of the estate.of Samuel E. McFadden, deceased, and the United States Fidelity & Guaranty Company, in that the principal of said amount is therein stated to be nine thousand nine hundred ninety-nine and 82/100 ($9,999.82) dollars, when it should be eight thousand nine hundred ninety-nine and 82/100 ($8,999.82) dollars, that is, the amount found to be due by the special referee, R. L. Douglas, Esq., whose report in that particular was expressly confirmed and adopted by this Court in the said decree; now, on motion of R. B. Caldwell and Gaston, Hamilton & Gaston, attorneys for defendant, Sallie M. Brice, executrix, etc., made pursuant to the provision of the said decree permitting any party to apply at the foot of said decree for such other or further orders as might be necessary to carry out the terms thereof, and duly noticed for hearing before me, it is, after hearing and with the consent of J. H. Marion, attorney for the plaintiff—

“Ordered, that the first word, vis., ‘Nine’ (9) of the principal amount as stated in the said decree for which judgment is allowed and ordered in favor of the plaintiff herein be changed and corrected to real ‘Eight’ (8) instead of nine, so that the provision of said decree in which said typographical error appears, as thus amended and corrected, shall read as follows: ‘It is ordered that plaintiff have judgment and that the same be entered up in the Clerk’s office for the sum of eight thousand and nine hundred and ninety-nine dollars and eighty-two cents together with interest on 'the said amount from January 1, 1925, at seven per cent per annum against Mary G. Sledge, administratrix of the estate of S. F. McFadden and against the United States Fidelity and Guaranty Company.’

“It is further ordered that the Clerk of this Court be, and is hereby authorized and directed to alter and correct .the decree filed in accordance with the foregoing order.

“It is further ordered, for the purpose of carrying out the terms of the said decree providing that the plaintiff have judgment and that same be entered in the Clerk’s office, that the accrued costs of the action be taxed against the defendants, Mary G. Sledge, as administratrix, etc., of the estate of S. F. McFadden, deceased, and against the United States Fidelity & Guaranty Company, including a reasonable fee for the services of R. L. Douglas, as special referee. But in the event the amount of said referee’s fee cannot be agreed upon or fixed by consent of counsel for the parties hereto, it is ordered that all remaining costs, exclusive of the referee’s fee, be taxed by the Clerk and entered as a part of the judgment in favor of the plaintiff, .and that the amount of the referee’s fee.be left open to be fixed by further order of the Court.

“C. J. Ramage,

“Special Presiding Judge.

“At chambers, April 7, 1928.”

Eater, April 14, 1928, his Honor, Judge Ramage, issued a supplemental decree, as follows:

“Pursuant to notice given by the attorneys for the United States Fidelity & Guaranty Company, and also given by the attorneys for the defendant, J. Weldon Anderson, further hearing was had in this proceeding by agreement at New-berry. Counsel for all parties interested were present with the exception of the attorneys for Mary G. Sledge, administratrix. After hearing the grounds of the several motions and after argument of counsel, it is on motion of Glenn & Glenn, attorneys for the defendant, United States Fidelity and Guaranty Company, ordered that the decree of date March 15th, 1928, be amended in the following particulars:

“1. As to the second ground of motion the decree to read ‘as guardians’ and not ‘as trustees’ (folio 939).

“2. As to the third ground of motion the sentence in question to read:

“ ‘Miss Mary G. Sledge, Administratrix, has shown that the estate of McFadden is insolvent.’ That she is given permission to make any further showing before some other Judge as may be necessary for her protection (folio 943).

‘3. As to the first ground of the motion the decree is amended as follows:

“That the Clerk insert instead of the words ‘the estate’ the words ‘statu quo’ so that it shall read: ‘the Brice half is still in statu quo! The whole sentence to read: ‘The Andersons only got the one-half of the land and the other half, the Brice half, is still in statu quo’ (folio 937).

“It is further ordered that amendments proposed in the notice of Glenn and Macauley, attorneys for the defendant, J. Weldon Anderson, be, and hereby are, refused.

“C. J. Ramage,

“Special Presiding Judge.

“April 14, 1928.”

It appears from the record that judgment in favor of the plaintiff, Coralie Means Andrews, was duly entered as ordered by the circuit Judge. From the original order and amended orders of the trial Judge, his Honor, Judge Ram-age, the defendant, United States Fidelity & Guaranty Company, the defendant, J. Weldon Anderson, and the defendant, Mary G. Sledge, administratrix, have appealed to this Court, upon exceptions which will be hereinafter adverted to.

Exceptions of United States Fidelity & Guaranty Company

The United States Fidelity & Guaranty Company presents 61 exceptions, several of which contain a number of subdivisions. The first 17 of the exceptions are directed to the referee’s report, from which report this appellant appealed to the circuit Judge; exceptions 18 to 27, inclusive, are directed to the admission of testimony; exceptions 28 to 35, inclusive, impute error in ordering a jury trial; 36 to 39, inclusive, are directed to the charge of the circuit Judge; 40 to 48, inclusive, are with reference to the verdict; 49 to 59, inclusive, concern the decree issued by his Honor, Judge Ramage; and the remaining exceptions, 60 and 61, are with reference to release of the surety. This grouping, which we adopt, was made by the attorneys for this appellant. Counsel for this appellant have further aided the Court by a clear statement of the questions raised by the exceptions and involved in the appeal, and instead of referring to the several exceptions separately, we shall simply refer to the questions which the exceptions raise, in the order stated by counsel for this appellant, and in this connection it may be stated that, under the view we take of the case, it is not necessary to enter into a lengthy discussion of any of the questions presented.

The first question to which counsel for this appellant directs attention is stated as follows :

“1. Failure of referee to re-state the guardian account for a period of five years, 1913—1917; failure of circuit Judge to make any independent personal review of this guardian account as accepted by the referee and likewise failure on the part of the circuit Judge to make any independent personal review of any part of the referee’s report and statements of account.”

The referee’s report, which will be incorporated in the report of the case, goes fully into this question, and the conclusion reached by him on this point, which was approved by the circuit Judge, is satisfactory to this Court. In our ■opinion there was no necessity for the referee to re-state the guardian account. A reading of the referee’s report in connection with the testimony in the case convinces us that the referee made a careful and painstaking study of the case, that he was fair to the appellant, and that the record amply sustains his findings and conclusions.

In the next question stated, error is alleged on the part of the referee and of the circuit Judge in failing to allow the guardians or any of their representatives proper commissions.

The referee refused to allow commissions on the expenditures which were made by McFadden for the reason that McFadden failed to comply with the requirement of the law as to making returns. Code 1922, Vol. 3, § 5544, provides: “All guardians of estates appointed by the Judge of Probate shall render to him an annual account of their actings and doings, as executors or administrators are required by law to do, and upon making default shall forfeit their commissions.” Epperson v. Jackson, 83 S. C., 158, 65 S. E., 217; Lay v. Lay, 10 S. C., 208; Koon v. Munro, 11 S. C., 139; Jones v. Swearingen, 42 S. C., 58, 19 S. E., 947. We do not agree with the contention that commissions should be allowed on the amount found to be owing the ward by McFadden at the time of his death, when the guardianship of McFadden was terminated. McFadden had never paid over a cent during the six years he was acting as sole guardian, but, on the other hand, during that period dissipated the estate, making it necessary for the ward to employ attorneys and institute suit on the guardian bond, resulting in a long and hotly contested litigation. Under these circumstances the ward should hot be charged up with commissions. In this connection we call attention to the following statement of this Court, in the case of Smith v. Moore, 109 S. C., 196, 95 S. E., 351, 353:

“ ‘The trustee is now confessedly due to his wards some $6,000.00 and the.present issue is : When he shall have paid that recovery, may he deduct from it the usu^.1 commission allowed by law for the compensation of trustees ? The circuit Court made the allowance on the authority of Gee v. Hicks (Rich. Eq., Cas. 5), and a like allowance was made in Epperson v. Jackson, 83 S. C., 164, 65 S. E., 217. Bút facts make the law of a case, and the facts here differ from those of the cases cited. * * * In the instant case Moore is not now guardian; he was removed from the trust by order of the probate Court in April, 1914, five months before this action was brought. If, therefore, Moore pays this recovery, he will not do so as guardian, nor will he pay it to the legatees, but to an officer of the Court. Under the very words of the statute which gives the right, Moore is not entitled to reduce the recovery by any alleged commissions due him. He does not come as a trustee executing his commission, but as a defaulter, brought to bar by another trustee,’ ” etc.

The third question presented by counsel is with reference to “failure to allow interest credit on annual expenditures before striking annual balance.”

A reference to the report of the referee convinces us that the referee allowed every credit to which the parties were entitled.

Under the fourth question stated error is alleged as follows :

; ■ “4. Error on the part of the trial Court in «transferring case from calendar two to calendar one after reference had been ordered in open court. This transfer was made after all testimony had been taken pursuant to terms of order of reference from which no appeal was made; all parties had presented evidence and cross examined adverse witnesses. That such conduct and procedure was a waiver of jury trial.”

After the defendant, Sallie M. Brice, executrix, was made a party to the action, which was some time after the suit was commenced, the attorneys for this defendant made a motion to transfer the case to calendar No. 1; but this motion was denied. The defendant, United States Fidelity & Guaranty Company, gave notice of motion of trial before a jury viva voce by testimony in open court. Judge Ramage, who was presiding, refused this motion, making the following ruling:

“Court: I will decide this whole case, but I am going to submit these issues here to the jury. I hold that I can set aside the verdict, if I want to, after I hear the testimony. I think that will be the best way to end this matter, if I think necessary to submit these matters to the jury when I get through and receive their verdict, and then I can take their whole record home and take such a time as I see fit; in other words, it is a matter for me entirely, but I am going to get a verdict from the jury on such matters so I will have the benefit of the very complete report of Mr. Douglas, and. also the verdict of the jury. Of course, I won’t be bound T>y either, but can decide the matter as I see it.”

Thereafter a jury was impaneled and sworn, and all of the testimony taken before the referee was offered in evidence, and all of the pleadings were read to the Court and jury. The following questions were submitted to the jury:

“1. Whether or not Mr. A. G. Brice’s estate has been fully discharged on the bond?

“2. Whether or not the United States Fidelity & Guaranty Company waived all claims against A. G. Brice’s estate?

“3. Whether or not there has been negligence and laches •on the part of the United States Fidelity & Guaranty Com-pany ?

“4. If there has been negligence and laches on the part of the United States Fidelity & Guaranty Company, is this •company barred or estopped from setting up any claim against the estate of A. G. Brice ?”

These, questions the jury answered in the affirmative, “Yes.” These questions were submitted to' the jury for the purpose of aiding the presiding Judge in deciding the issue of fact involved; but, as stated by him, he was not bound by the jury’s finding, and his Honor decided the issues independently of the jury’s finding. Under the order of reference the referee took the testimony on all issues, but did not report his finding on any issue except as to the amount owing the ward. It was therefore incumbent upon the Judge who heard the cause to decide the other issues raised in the case. For the purpose of aiding him he had the right under the practice of this State to frame issues for the jury, but, as stated by his Honor, he was not bound by the finding of the jury. We may add, also, that we fail to see how this defendant, the United States Fidelity & Guaranty Company, was prejudiced by the procedure adopted by the circuit Judge.

This appellant states the fifth question thus:

“5. Error on the part of the trial Court in admitting certain testimony. Certain instruments admitted are contended to be privileged communications or self-serving declarations. Other letters admitted as a basis of estoppel clearly relate to acts in futuro, and not communicated to complaining party.”

Under the view we take of the exceptions which raise this question, it is not 'necessary to refer to all of the matters) objected to. It is sufficient tO' state that, in our opinion, all of the testimony questioned had some bearing on the issues involved. It consisted for the most part of reports filed and letters written between some of the parties to the action. E>ven if it should be conceded that some of these exhibits were not strictly competent, so far as this defendant is concerned, the same could not be considered prejudicial to this defendant, for the reason that the finding of the jury was not binding on the Judge and his Honor decided the questions independently of the jury’s finding, and it must be assumed that in reaching his conclusion his Honor did not consider incompetent testimony.

The sixth question is as follows:

“6. Error on the part of the circuit Judge in his charge as to the importance of the jury’s findings, as to burden of proof upon affirmative defenses and as to law of laches, waiver and estoppel.”

In our opinion it would serve no useful purpose to discuss in detail the several errors imputed to the circuit judge under this heading, in view of the fact that his Honor passed upon the several issues independently of the finding of the jury, and also in view of the fact that, in our opinion, the record in the case amply supports the findings of the circuit Judge and the conclusion reached by him on all of the issues involved. The questions raised under this line of the exceptions, therefore, become moot questions. We may add that imour opinion his Honor stated the law correctly.

(The charge of the Judge and this appellant’s exceptions will be reported.)

Thb seventh question stated by this appellant is as follows :

“7. Error in refusing to set aside the verdict of the jurj' in that the facts were undisputed and there were only legal conclusions to be determined by the Court and that the jury’s findings were contrary to the weight of testimony and to the charge of the Court.”

The circuit Judge refused to set aside the verdict of the jury for «the reason that he was convinced that the jury reached a proper verdict, and independently of the finding of the jury he reached the same conclusion the jury did. In our opinion the verdict is well supported by the record.

In this appellant’s eighth statement of the issues raised by the exceptions it is contended that there was “error on the part of the Court in holding that in an action upon a joint guardian bond the secondary surety was primarily liable.”

The bond in question, executed by the joint guardians and by the bonding company (United States Fidelity & Guaranty Company), was a joint and several liability, and when settlement was not made with the ward when she became of age, she had the right to institute suit against all or either of the parties. Under this theory she instituted suit against the bonding company, making the representative of the McFadden estate a party to the action. Under the law she had a legal right to pursue this course. ■ '

The ninth and tenth questions, which will be considered' together, are stated as follows :

“9. Whether the estate of the first deceased guardian! .could only be released by proper legal procedure or can such estate be released as principal or as primary surety on suchi guardian bond by the laches or waiver or estoppel on the part of the secondary surety, especially where there was. both an express and implied contract on the part of the predeceased guardian to indemnify the secondary surety from-, all loss by reason of execution of bond.

“10. Whether a release by any means of estate o*f co-principal on joint guardian bond would release all subsequent sureties on such bond.”

In the first place, we must bear in mind that the ward,, the plaintiff, Coralie Means Andrews, has not released any party. She has simply elected to bring suit against the bonding company, making the representative of the McFadden estate a party defendant. She had good and sufficient reason-for doing this, and independent of any reason, she had a right under the law to adopt this course. The question of the-release of the Brice estate involved here is not a question between the plaintiff and the representative of the Brice estate, but a question between this appellant, the bonding company, and the representative of the Brice estate. The-answers of the jury to the several questions submitted to the-jury on this line, which finding was concurred in by the trial Judge, furnish sufficient ground for overruling appellant’s-contention, for in our opinion the facts in the case, viewed in the light of the law applicable thereto, are in accord with, the finding of the jury and the conclusion of the trial Judge. On this question the order of the trial Judge directed: “That the estate of A. G. Brice be and the same is hereby declared discharged from all liability, unless the plaintiff should fail to collect out of the United States Fidelity & Guaranty Com pany and in that case, plaintiff is hereby permitted to bring an action against the estate of A. G. Brice if she should be so advised, but so far as any other party to this action, any further'action against the estate of A. G. Brice is hereby barred.” This appellant, United States Fidelity & Guaranty Company, had no right in law or equity to require the plaintiff to proceed first against the Brice estate, and under the finding of the jury, concurred in by the trial Judge, to which we have called attention, based upon the facts in the case, the Brice estate, in our opinion, is properly discharged from all liability, in so far as the United States Fidelity & Guaranty Company is concerned. This release of the Brice estate as to any and all liability on account of any amount of money the United States Fidelity & Guaranty Company may have to pay over to the plaintiff has no 1 bearing on the rights of the plaintiff against the United States Fidelity & Guaranty Company. The discharge of the Brice estate, so far as the United States Fidelity & Guaranty Company is concerned, is due to the splendid way Mr. Brice handled the ward’s money, and because of the release granted the Brice estate by Mr. McFadden, which release the United States Fidelity & Guaranty Company, by its conduct, if not by its direct acts, approved. In our opinion, under no view of the case is the bonding company entitled to a release.

The eleventh statement of this appellant, as to the questions raised by the exceptions, is as follows:

“11. The joint guardians acquired title to a tract of land by deed of the mortgagor in lieu of foreclosure proceedings. The surviving guardian conveyed this tract by deed without authority of the Court. If such conveyance is held a nullity, ¡who is now the owner of this tract of land, the attempted purchaser, the proper representative of the deceased guardian, or the ward? And if the ward, would not her corpus be charged with the amount of the debt due her when title was taken for this land, that is, $4,000.00, principal of loan on November 14, 1928.”

In our opinion the deed in question, under which the defendant, J. Weldon Anderson, claims title, is not a nullity, but gives to the defendant Anderson a good and sufficient title to said land; and therefore the question suggested by the bonding company does not arise. We shall advert to this question when we consider the exceptions of the appellant Anderson.

The exceptions of the defendant United States Fidelity & Guaranty Company are overruled.

Exceptions oe Mary G. SeEdge, Administratrix oe the Estate oe Samuee E. McFadden

Under the first two exceptions of this appellant, Mary G. Sledge, administratrix, error is imputed on account of the Court not holding that this defendant was entitled to a jury trial and in referring the case to' the referee. The record discloses that there was no appeal from the order of reference. Therefore that question is not before this Court.

The third exception of this appellant is as follows:

“3. That the Court erred in failing to hold that the administratrix of McFadden estate was not to handle the funds, disburse same to plaintiff and receive commissions, when it is undisputed that the action was founded upon returns carefully prepared by her at the expense of the estate, and when it is apparent that plaintiff will collect all she is entitled to.”

The question raised by this exception is fully treated by the referee in his report, and we fully agree with his disposition of this matter. (The referee’s report will be incorporated in the report of the case.)

In this appellant’s fourth exception error is alleged as follows :

“That Judge Henry made the Brice estate a party defendant to this action without notice and without the knowledge or consent of the administratrix of McFadden estate.”

It was not necessary that notice of making the Brice estate a party should be given to this appellant; and it does not appear that this appellant was in any way prejudiced by such order.

The fifth exception of this appellant adopts the twelfth exception of the defendant United States Fidelity & Guaranty Company. The exception is therefore disposed of by what we have stated under our consideration of the exceptions of the appellant United States Fidelity & Guaranty Company.

The sixth exception is as follows:

“The undisputed evidence is that on February 19th, 1913, plaintiff’s guardians loaned in good faith and without negligence four thousand ($4,000.00) dollars to McCluney secured by first mortgage on real estate, and that neither of them ever received any interest from said investment. Therefore the referee and Court erred in finding plaintiff entitled to any interest whatsoever on said four thousand ($4,000.00) dollar investment after February 19th, 1913.”

The question raised by this exception has been considered and answered adversely to the contention of appellant in our consideration of the exceptions of the appellant United States Fidelity & Guaranty Company.

The exceptions of this defendant, Mary G. Sledge, as administratrix, are overruled.

Exceptions oe the Defendant J. Weedon Anderson

The exceptions of this defendant, which will be reported with the case, raise several questions, but under our view of the case, it is not necessary to consider all of them. As we view the case, upon the death of Brice, one of the guardians, McFadden, the other guardian, as surviving active trustee, took the legal estate in the entire interest in the land in question. The facts leading up to the execution of title to' An derson, briefly stated, are as follows: Brice and McFadden were originally joint guardians of the plaintiff, Coralie Means Andrews. While both of these guardians were living, as such guardians, they loaned of their ward’s money to one Thomas F. McCluney the sum of $4,000.00. As security to this indebtedness they had McCluney execute to them a mortgage covering certain real estate, referred to in the record of this case as the McCluney lands, containing 103.75 acres. Later, about January, 1914, as additional security to this indebtedness, McCluney executed unto these joint guardians another mortgage, covering another tract of land, consisting of twenty-five acres. These mortgages were held by the joint guardians as security to this indebtedness. The tract of land is referred to in the record at places of 130| acres, being the two tracts combined. The mortgages were first mortgages over the land in question. Later on, when unable to pay the obligation, McCluney executed unto Brice and McFadden, as guardians of Coralie Means (she was afterwards married to one Andrews, and is named in the record as Coralie Means Andrews), their ward, a title to land in question. McCluney gave the deed in satisfaction of the said mortgage indebtedness, and it is evident that Brice and McFadden so regarded it. It appears that they carried this tract of land in their returns to the probate Judge, not as a tract of land, but as a $4,000.00 investment, to which land they held the title as guardians. Mr. Brice died in 1918. Thereafter McFadden continued to handle the funds of the ward, as her surviving guardian.

In January, 1920, McFadden arranged a sale of the land to W. DuPre Anderson and J. Weldon Anderson. In the wording of the title McFadden is referred to as surviving guardian of Coralie Means. The consideration for the sale of the land was $4,690.07. McFadden signed the title, “Samuel E. McEadden, surviving guardian of Coralie Means.” In the year 1921, W. DuPre Anderson conveyed his interest in the lands to his brother, the said J. Weldon Anderson, and since that time J. Weldon Anderson has been in sole possession of the said lands, and has made improvements on the same at a very heavy expense. It appears from the evidence in the case that no person questioned his title and right of possession until he was made a party to this action.

As stated above, it is our opinion that when Brice died, McFadden, as the surviving guardian, surviving acting trus tee, took the legal estate in the entire interest in these lands. In support of this holding attention is called to. the general rule stated in Perry on Trusts (5th Ed.), Vol. 1, pp. 499, 500:

“Sec. 343. Trust property is generally limited to trustees, as joint-tenants; and if by the terms of the gift it is doubtful whether the trustees take as joint tenants, or tenants in common, courts will construe a joint-tenancy if possible, on account of the inconvenience of trustees holding as tenants in common; and where statutes have abolished joint-tenancy, an exception is generally made in the case of trustees. And courts will not allow a process for the partition of a trust estate. Therefore, upon the death of one of the original trustees, the whole estate, whether real or personal, devolves upon the survivors, and so on to the last survivor; and upon the death of the last survivor, if he has made no ¡disposition of the estate by will or otherwise, it devolves upon his heirs if real estate, and upon his executors or administrators if it is personal estate, (a) The title in the surviving trustee is complete, and no breaches of trust after the death of his co-trustees can be charged upon their estate; nor can the representatives of his co-trustees interfere with his management of the trust estate, even if he is insolvent or ,umfit jfor'/the trust, (b) The cestui que trust alone can interfere or apply to the Court for redress or relief. So all rights of action are in the suviving trustee, and he may sue in his own name or as survivor, according as the cause of an action accrued before or after the death of his co-trus tees; and, in case of his death, his executor or administrator may continue the action. The rule is that actions must be brought in the names of the parties to> the contract.”

In 26 R. C. L., 1339, the rule is stated thus:

“Where the trustees are invested with the legal estate, in order to enable them to discharge the various trusts declared, it is the well-settled general rule that the power conferred is a power coupled with an interest, which survives, on the death of one of them, and may be executed by the survivor. It is not necessary that the trustees should have a personal interest in the trust; it is the possession of the legal estate, as a right virtute officii in the subject over which the power is to be exercised, that makes an interest, which, when coupled with the power, the latter survives.”

See also, in this connection, Dick v. Harby, 48 S. C., 529, 26 S. E., 900; Singleton v. Cuttino, 105 S. C., 49, 89 S. E., 385.

In the deed executed by McCluney to the guardians we find the following wording:

“To have and to hold, all and singular, the said premises before mentioned unto the said A. G. Brice and S. E. Mc-Eadden, as guardians of Coralie Means as aforesaid, their successors and their heirs and assigns forever.”

Upon the death of Brice, McFadden became de facto and de jure successor in office to Brice as guardian, and in our opinion, under the facts of this case, had the power to execute the said title, conveying unto the Andersons the land in question, and that J. Weldon Anderson, having received from his brother a deed for his interest in the land, is now the owner of it in fee simple.

The exceptions of this defendant, J. Weldon Anderson, which raise the question we have discussed, are therefore sustained. We do not consider it necessary to pass upon the other exceptions of this defendant.

It is the judgment of this Court that the decree and judgment of the circuit Court be, and the same is hereby, modi fied in accordance with the view herein expressed and affirmed in all other respects.

(Note: There should be incorporated in the report of the case the report of the special referee, the Judge’s charge to the jury, the decree and the several orders of his Honor, Judge Ramage, the exceptions of the defendant United States Fidelity & Guaranty Company, and the exceptions of the defendant J. Weldon Anderson.)

Mr. Chief Justice Watts concurs. Messrs. Justices Cothran, BeEasE and StabeEr concur in result.