Cunningham v. Cauthen

21 S.E. 800, 44 S.C. 95, 1895 S.C. LEXIS 69

Opinion

The opinion of the court was delivered by

Me. Justice Pope.

A former appeal, which is reported in 37 S. C., 123, having necessitated a restatement of accounts of A. J. Kibler, as administrator of the estate of Joseph A. Cunningham, deceased, the action was remitted to the Circuit Court for that purpose. When the Circuit Court took action thereon, it was to pass an order on the 10th of October, 1892, referring it to D. A. Williams, Esq., as referee, “to state the accounts of A. J. Kibler, as administrator of Joseph A. Cunningham, deceased, in conformity to the instructions contained in the decree of the Supreme Court herein, and according to the principles therein enunciated, and to do all other acts and things therein required.” On the first day of June, 1893, this referee made his report, wrherein he reported that on the first day of June, 1893, the said A. J. Kibler was indebted to his intestate’s estate in the sum of $35,670.93, which was divisible in equal portions between the five plaintiffs, so that the share of each therein was $7,134,18 3-5. But he also found that said administrator had paid to each of the plaintiffs large sums of money on account, so that on the first of June, 1893, he owed the plaintiff, Wm. J. Cunningham, $860.23 3-5; to the plaintiff, Thornwell K. Cunningham, $2,512.30 3-5; to the plaintiff, Beauregard Cunningham, $1,003.93 3-5; to the plaintiff, E. T. Dunlap, $321.17 4-5, and to the plaintiff, J. A. Dunlap, $321.17 4-5 (it may be well to state that the two last are the distributees of the deceased Mrs. Mary C. Dunlap, nee Cunningham), but that the plaintiff, Mrs. Nannie C. Yanlandingham, had overdrawn her share by the amount of $108.85 2-3. To this report of the referee both sides freely excepted, the plaintiffs exhibiting eighteen exceptions, and the defendant presenting fifteen exceptions. The cause was heard before his honor, Judge Ernest Gary, at the spring, 1894, term of the Court of Common Pleas for Lancaster County, in this State, and on the 6th day of May, 1894, he filed the following decree:

“The facts of this case will be found in the 37th vol. S. C., reported at pages 123 to 145. The Supreme Court recommitted the cause to the Circuit Court, for the purpose of having the account restated in accordance with the decision of the Supreme Court. The referee has recast the account and filed his report in the cause. Plaintiffs and defendant have both filed numerous exceptions to the report, and the cause was heard by me upon the exceptions and argument of counsel engaged in the cause. From a careful reading of the decree of the Supreme Court, there are very few matters left open for adjudication. It appears to me the referee was only directed to recast his original report in the following particulars: 1st. By correcting his former report as to commissions. This he has done. 2d. By omitting to charge a premium on the specie on hand at the death of the intestate. This correction has been made. 3d. By giving the administrator credit for the items on page 123 of the case. This has been done. 4th. By allowing credit for certain items of board. This has been done. It, therefore, appearing that the referee has followed the directions of the Supreme Court in restating his accounts, it is ordered, that the report be confirmed and the exceptions thereto overruled. The Supreme Court in its decree reversed the decree of the Circuit Court as to the costs of the case, without prejudice, as the cause would have to be sent back. In a case like this, costs are largely in the discretion of the presiding judge. After considering the facts, I agree with Judge Witherspoon that the costs of this action should be paid out of the estate of Andrew J. Kibler, and I so decree.” From this decree the parties, plaintiff and defendant, appeal, and these grounds of appeal will be reported.

1 We will try to bestow the proper care in disposing of these sets of exceptions. It is always well to remember that it is a matter of no little difficulty to divest the mind of previous impressions, and we apprehend that no little of the trouble with the counsel of this cause has arisen in this way. Let us first examine the grounds of appeal presented by plaintiffs. Their first exception imputes error to the Circuit Judge in his conclusion that, under the decisions of this court, the defendant’s intestate is not chargeable with the premium collected by the administrator on notes taken by him for cotton originally belonging to the estate of Cunningham, deceased. The amount involved in this exception is considerable, and we have considered it carefully. A. J. Kibler, in his first return as administrator, charged himself with $9,428.15, as the amount of the sale bill for property, including cotton, sold of his intestate’s estate in January, 1866. This administrator contributed very largely to create the confusion in regard to this first return, by loose references to the cotton that he himself purchased at said sale, and had entered on said sale bill at twenty-eight cents a pound in gold coin, as still thereafter belonging to the estate of his intestate. But by the previous decision of this court we decided that the administrator having charged himself with this cotton, at twenty-eight cents in gold coin on the sale bill, and this being established as its actual value, “that the plaintiffs are not entitled both to the value of the cotton and the securities taken for it, or any part of it, at the second sale made by the first purchaser;” and further, it not being shown that the administrator had ever changed his relation to the estate of his intestate for the value of this cotton as of gold, for .the new relation as of currency, there was no principle of law wherein now, when one is convertible for the other, at par, that this administrator should be required to add any per cent., forty or any other, in his accounts for such cotton. Let our position be understood. We mean, that if this administrator had charged himself with this cotton at thirty-nine cents in current bills or money, and had not converted this into gold coin, we would have held him to this thirty-nine cents per pound, notwithstanding at this time such currency would have been equal to gold. This exception is overruled.

2 So far as the second exception is concerned, it is intended thereby to suggest this difficulty, that when a referee makes a finding of fact in a matter not only irrelevant to the controversy, but one which the Supreme Court has so decided to be irrelevant, and which decision of the Supreme Court is obeyed by said referee in making up the accounting, and the Circuit Judge confirms the findings of fact by such referee, that then the Circuit Judge is in error in not enforcing such error by his decreee, notwithstanding the decision of the Supreme Court. We think the Circuit Judge was entirely correct, even if his attention had been called to this matter, for he was bound to enforce the judgment of this court. Sanders v. Bagwell, 37 S. C., 145. Judgments are not based on irrelevant testimony. 3. We do not feel at liberty to canvass the suggestion of error herein embodied, for if our former decision fixed the charge of the cotton at twenty-eight cents in gold as a proper charge against the administrator, and also decided that it made no difference as to who and for what the cotton was afterwards sold by its purchaser, we are not concerned with such matters. The court has already canvassed these matters over, and our decision thereon rendered. It is enough to state that fact as the basis for now overruling this exception. 4th. The fourth exception is disposed of under what is said in passing upon the 2d and 3d exceptions.

3 5. This next exception is not altogether free from difficulty. By our previous decision the cause was remanded to the Circuit Court, in order that if it could be shown that A. J. Kibler as administrator actually received the premium on gold or gold notes due the estate, such referee might alter his accounts as affected thereby. When the plaintiffs applied to the referee to be allowed to introduce new and additional testimony, the referee declined to hear it, and now this refusal is assailed as erroneous. In cases where new trials are ordered, of course, such trials are de novo. But in a cause in equity, when the testimony on all the issues has been fully taken and reported to the court by the very referee to whom the duty is confided of correcting a few amongst the many of his former conclusions, it does not seem that additional testimony could be admitted without the usual incidents to new testimony, namely: fresh questions, &c. We might have been more explicit in our former judgment; but as it is, wre think the referee correctly construed our decision; we did not mean thereby to open afresh all these matters. This exception must, therefore, be overruled.

4 6. Error is imputed in this exception to the Circuit Judge, in holding that, under the first decision of this case, the Supreme Court determined that in making the accounts of the administrator with the several plaintiffs as distributees of the estate of his intestate, interest was to be allowed the administrator on all the payments made to, or in behalf of, such distributees. The Circuit Judge correctly construed our decision. The language of this court at the top on page 141 is: “The children advanced, however, being required on final settlement to account for interest on their respective advances, from the time they were received, and thus reimburse the administrator for so much interest as has been charged to him on the advances.” 7. This exception pertains somewhat of the character of the 6th, and might be said to have been disposed of by the language used by us under No. 6, but for the intimation that at the time of such interest being charged against the distributees in favor of the administrator, the latter had a surplus of interest upon which no interest was paid. We think the very theory of the law on this subject is outlined in the remarks of Mr. Justice McGowan in our former decision in this case, when he said: “The amounts paid to the distributees from time to time were not, as we think, ‘expenditures,’ in (he sense of Dixon v. Hunter, 3 Hill, 206. They did not, in reality, diminish the volume of the estate in the hands of the administrator, the whole volume of which it was necessary to ascertain, to make a fair division among those equally interested. The payments were rather in the nature of advances or loans, still parts of the whole estate are to be accounted for as such,” &c. (the latter part has already been quoted).' There was no error here.

8. It is true, that this court in rendering its former opinion did use the language quoted in the eighth exception, but it .was not intended by us to couple the accounting by the administrator so as to depend upon advances made to the distributees, or vice versa. The fact is, nothing should be said or done in judgments of courts by which any idea of delay in the settlements of estates by administrators beyond the limits fixed by law should be encouraged. Both administrators and distributees, respectively, should have no reason for delay — we mean unnecessary delay. In this case, no guardians were appointed for the infant children of the intestate, and they were motherless; hence the;administrator did make advances from time to time to every one of them — they had to live, be clothed, and educated. All these the administrator provided for from the estate of their father. And, of course, each child must account for the moneys advanced to him or her, just as they would if the administrator held notes given by a child to the intestate. In the latter case, the administrator has the right to pay off such child pro tanto with its own paper. This is all that was meant by this court in the language used by it. And, therefore, the Circuit Judge was not in error, as is here complained. 9. Our answer to the ninth exception is furnished by what we have said touching the eighth exception.

10. The exceptions, 10, 11, 12, 13, 14, 15, 16, and 17, are merely used to point out the individual instances where the application of the rule set out in our consideration of exception 8 are fully answered by what we have held on that subject, and are, therefore, overruled.

We will next consider the allegations of error embodied in the exceptions preferred by the defendant.

5 1. The first exception will be seen to have no practical effect when it is stated that although the referee did make the finding of fact therein complained of, yet when he came to apply the law of the case as fixed by our former decision, the referee was careful to follow the latter and discard the former.

6 2. The second exception is overruled, for there was testimony to sustain it. Under our rule, when there is testimony to support the concurrent findings of fact of the Circuit Judge and referee, this court will rarely disturb such finding.

3.And so, too, as to the third exception. We find testimony to support such concurrent finding of the Circuit Judge and referee, and we will not, under the rule, disturb it.

7 4.We cannot agree with the defendant in his fourth exception. It seems to us that the testimony was stated by the Circuit Judge and referee correctly. 5. We do not understand that the Circuit Judge and referee interfered practically with the conclusions of this court in its former decision.

8 6. We cannot agree with the defendant in his 6th, 7th, 8th, and 9th exceptions. 7. In the tenth exception, the defendant seeks to imjpugn the charge of 40 per cent, premium on $2,116.09. There was testimony in the “Case” on this subject. And if there was such testimony, this conclusion is not at variance with our former decision. 8. Nor can we sustain the eleventh exception, for there was testimony upon which such conclusion, as therein assailed, might have been based. 9. The error of ten dollars and three cents pointed out in the twelfth exception is easily corrected.

4 10. It is urged by the defendant in his thirteenth exception that the Circuit Judge has not enforced the former judgment of this court, when it directed that interest be allowed the administrator upon the sums advanced by him to the respective distributees of the estate of the intestate, Cunningham, from the time the same were paid. The former judgment of this court in its use of the words, “from the date of such payment or advancement,” designed that the yearly allowance of interest on such payments or advancements took place so as to correspond with the yearly balances upon which interest was charged against the administrator. We are satisfied that such an arrangement is all that is required in this case, and we, therefore, overrule this exception.

9 11. Lastly, we will consider the fourteenth exception, wherein it is insisted that the Circuit Judge was in error in adjudging that the estate of A. J. Fabler, deceased, should pay all the costs of this action. It is usual to uphold the chancellor in his decision as to .the payment of costs, except some error is clearly pointed out. McCrady v. Jones, 36 S. C., 136. Here there is no error pointed out. But apart from this time-honored practice in this matter of decreeing what party is liable for costs, if we refer to the pleadings in this case, when the plaintiffs demanded an account of A. J. Fabler as administrator of their father’s estate, we find that in his answer be denied that he owed them anything, and, on the contrary, averred that he had paid them more than they were entitled to receive. Yet now that the litigation is about ended, we find that these distributees are entitled to a judgment against such administrator for several thousand dollars. If the losing party is to pay the costs, then it should be the estate of the said A. J. Kibler, deceased. We cannot, therefore, sanction this ground of appeal.

8 It is the judgment of this court, that the judgment of the Circuit Court be affirmed, on the condition that the plaintiffs, who are entitled to judgment, will first reduce their claims in twenty days hereafter by giving a credit to the estate of A. J. Kibler, deceased, for the sum of twenty-eight dollars and fifty-eight cents, on the first day of June, 1893. But in the event the plaintiffs fail to give this credit of twenty-eight dollars and fifty-eight cents, then the judgment of the Circuit Court shall be modified by requiring the plaintiffs to give to the estate of the said A. J. Kibler, deceased, the said credit of twenty-eight dollars and fifty-eight cents, on the first day of June, 1893, and for that purpose the cause is remanded to the Circuit Court.