The opinion of the court was delivered by
Mr. Justice McGowan.
On July 16, 1885, Bobo'& Car-lisle and J. S. R. Thomson instituted suit against Simeon Gowan, Thomas Gowan, and W. E. . Gowrnn, as executors of William Gowan, deceased, and N. R. Lewis, alleging that in February,' 1881, the defendant, N. R. Lewis, executed to them an assignment of her interest (to the extent of $200) in the estates of her father, Newton Gowan, and of her grandfather, William Gowan, for professional services rendered in defending her husband in an indictment against him for murder, of which he was acquitted; [373]*373that the aforesaid executors of the will of William Gowan have in their hands, after paying the debts, the sum of $346, as the share of the said N. R. Lewis, but that they refused to pay the plaintiffs the aforesaid sum of $200, or any part of the share of said N. R. Lewis; and praying judgment for the $200, and that' the executors should be restrained and enjoined from paying out the share of N. R. Lewis, until the further order of the court. Judge Wallace granted the injunction.
The executors were regularly served, but made no answer. Judgment by default was taken against them; and the case was referred to a special referee (E. E. Bomar, Esq.), who reported that the facts alleged in the complaint were true, and “that Simeon Gowan, Thomas Gowan, and W. E. Gowan, as executors of William Gowan, deceased, have in their hands about the sum of $346 of the share of N. R. Lewis, and that the said plaintiffs are entitled to receive from said defendants, as executors of the will of William Gowan, deceased, the sum of $200 of said share.” Judge Witherspoon confirmed the report and made it the judgment of the court. “It is further ordered and adjudged, that the defendants, Simeon Gowan, Thomas Gowan, and William Gowan, as executors of William Gowan, deceased, do pay, out of the share or interest of the defendant, N. R. Lewis, in the estate of the said William Gowan, deceased, first, the costs and disbursements of this action; and, second, the plaintiffs herein the sum of two hundred dollars,” &c.
Thereupon the plaintiffs, on November 12, 1885, caused to be entered as a judgment a paper signed by the clerk, but without his seal, which seems to have been a printed form, with the blanks for the term of the court, the names of the parties, &c., not filled out. On January 5, an execution was issued, with the signature and seal of the clerk, commanding the sheriff “to satisfy the said judgment out of the personal property of the said judgment debtor belonging to the estate of William Gowan, deceased,” &c. This execution was returned; and on December 6, 1887, another was issued by the clerk, commanding the sheriff to satisfy said judgment for $200 out of the property of said judgment debtor in your county, &c. (The judgment formula and both executions should appear in the report of the case.)
[374]*374Under this last execution de bonis propriis, the sheriff levied upon the individual property of the aforesaid executors of Wrn. Gowan, deceased, whereupon they instituted this action against the sheriff, Gentry, and the plaintiffs in the first action and N. R. Lewis, to enjoin the sale; and alleging that said pretended judgment and executions, and all proceedings thereunder, were defective, irregular, and void, prayed that they should be set aside and cancelled of record. N. R. Lewis did not answer, but the other defendants made vigorous defence, giving a history of the first proceeding as above stated, and insisting that they were legal and valid. Judge Hudson, who heard the case, held “that the plaintiffs are bound by the judgment which they now seek to set aside. They were duly served with summons in the action in. which said judgment was rendered. They were all sui juris, and deliberately and knowingly paid no attention to the summons, and it is now too late to seek to come in and litigate the question settled in said cause. The action in which the judgment is now assailed, was to recover part of a legacy. The court has found that at the time of rendition of said judgment, they (the executors) had this legacy in their hands, and has adjudged that they pay to the plaintiffs in said action the amount of their claim,” &c. He also held that the defects in the judgment were mere irregularities, which could he corrected at any time, and if not, that Judge Witherspoon’s decree alone would support the last execution de bonis propriis, which was the correct one.
From which decree the plaintiffs appeal, and charge error in the Circuit Judge: “1. In holding that plaintiffs are estopped by the record in the case of Thomson and others against these plaintiffs, as executors, defendants, from prosecuting this action. 2. In holding that the defendants had the right, under said judgment, to issue an execution against these plaintiffs individually for collection of the same. 3. In holding that said judgment creditors had the right to issue these executions under the order of Judge Witherspoon without any formal judgments. 4. In holding that the pretended judgment filed in the clerk’s office was not necessary, but if it was, it was sufficient. 5. In holding that the executions issued under said pretended judgment were [375]*375good and regular, and that the defendant had the right to proceed with'the sale of plaintiff’s land thereunder.”
It seems that the proceedings in the first action were perfectly ■ regular — certainly down to the decree of Judge Witherspoon, October 23, 1885, and therefore that decree finally and conclusively adjudged against the defaulting executors every matter necessarily involved in that issue. It was as to them res adjudieata. But it is urged that the paper judgment and the two executions subsequently issued to carry that judgment into effect, were so irregular and defective as to make them absolutely void and incapable of being executed. Exceptions 1, 2, and 5 make the point, substantially, that the judgment being against the defendants, as executors of William Gowan, deceased, the execution could only issue against them de bonis testatoris, and that before an execution could issue against them de bonis propriis, a second action was necessary, suggesting a devastavit.
We think this view overlooks the fact that the proceeding is a suit in equity for the payment of a legacy (or part of it). All the authorities agree that there is a difference as to the remedies against executors in equity and at law. When executors are sued at law for a debt of their testator, the first action is merely to establish the debt, and if proper pleas are interposed, the judgment is only de bonis testatoris, but the execution runs de bonis ■propriis as to the costs: and then before recovery of the debt, it is necessary by some second proceeding to establish the existence of assets, or, as it is called, a devastavit. In New York this second proceeding is before the “surrogate” for an account, while in this State it is by. a second action, suggesting a devastavit. See Trimmier v. Thomson, 19 S. C., 247. But when the suit is in equity for a legacy and in that suit, there is an accounting, in which it appears that there are assets in the hands of the executors, then there is no necessity for the “surrogate” or a second action or anything of the kind. The question of assets has already been determined.
Now, in this case assets were established, first, by the failure of the executors to appear and plead plene
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Mr. Justice McGowan.
On July 16, 1885, Bobo'& Car-lisle and J. S. R. Thomson instituted suit against Simeon Gowan, Thomas Gowan, and W. E. . Gowrnn, as executors of William Gowan, deceased, and N. R. Lewis, alleging that in February,' 1881, the defendant, N. R. Lewis, executed to them an assignment of her interest (to the extent of $200) in the estates of her father, Newton Gowan, and of her grandfather, William Gowan, for professional services rendered in defending her husband in an indictment against him for murder, of which he was acquitted; [373]*373that the aforesaid executors of the will of William Gowan have in their hands, after paying the debts, the sum of $346, as the share of the said N. R. Lewis, but that they refused to pay the plaintiffs the aforesaid sum of $200, or any part of the share of said N. R. Lewis; and praying judgment for the $200, and that' the executors should be restrained and enjoined from paying out the share of N. R. Lewis, until the further order of the court. Judge Wallace granted the injunction.
The executors were regularly served, but made no answer. Judgment by default was taken against them; and the case was referred to a special referee (E. E. Bomar, Esq.), who reported that the facts alleged in the complaint were true, and “that Simeon Gowan, Thomas Gowan, and W. E. Gowan, as executors of William Gowan, deceased, have in their hands about the sum of $346 of the share of N. R. Lewis, and that the said plaintiffs are entitled to receive from said defendants, as executors of the will of William Gowan, deceased, the sum of $200 of said share.” Judge Witherspoon confirmed the report and made it the judgment of the court. “It is further ordered and adjudged, that the defendants, Simeon Gowan, Thomas Gowan, and William Gowan, as executors of William Gowan, deceased, do pay, out of the share or interest of the defendant, N. R. Lewis, in the estate of the said William Gowan, deceased, first, the costs and disbursements of this action; and, second, the plaintiffs herein the sum of two hundred dollars,” &c.
Thereupon the plaintiffs, on November 12, 1885, caused to be entered as a judgment a paper signed by the clerk, but without his seal, which seems to have been a printed form, with the blanks for the term of the court, the names of the parties, &c., not filled out. On January 5, an execution was issued, with the signature and seal of the clerk, commanding the sheriff “to satisfy the said judgment out of the personal property of the said judgment debtor belonging to the estate of William Gowan, deceased,” &c. This execution was returned; and on December 6, 1887, another was issued by the clerk, commanding the sheriff to satisfy said judgment for $200 out of the property of said judgment debtor in your county, &c. (The judgment formula and both executions should appear in the report of the case.)
[374]*374Under this last execution de bonis propriis, the sheriff levied upon the individual property of the aforesaid executors of Wrn. Gowan, deceased, whereupon they instituted this action against the sheriff, Gentry, and the plaintiffs in the first action and N. R. Lewis, to enjoin the sale; and alleging that said pretended judgment and executions, and all proceedings thereunder, were defective, irregular, and void, prayed that they should be set aside and cancelled of record. N. R. Lewis did not answer, but the other defendants made vigorous defence, giving a history of the first proceeding as above stated, and insisting that they were legal and valid. Judge Hudson, who heard the case, held “that the plaintiffs are bound by the judgment which they now seek to set aside. They were duly served with summons in the action in. which said judgment was rendered. They were all sui juris, and deliberately and knowingly paid no attention to the summons, and it is now too late to seek to come in and litigate the question settled in said cause. The action in which the judgment is now assailed, was to recover part of a legacy. The court has found that at the time of rendition of said judgment, they (the executors) had this legacy in their hands, and has adjudged that they pay to the plaintiffs in said action the amount of their claim,” &c. He also held that the defects in the judgment were mere irregularities, which could he corrected at any time, and if not, that Judge Witherspoon’s decree alone would support the last execution de bonis propriis, which was the correct one.
From which decree the plaintiffs appeal, and charge error in the Circuit Judge: “1. In holding that plaintiffs are estopped by the record in the case of Thomson and others against these plaintiffs, as executors, defendants, from prosecuting this action. 2. In holding that the defendants had the right, under said judgment, to issue an execution against these plaintiffs individually for collection of the same. 3. In holding that said judgment creditors had the right to issue these executions under the order of Judge Witherspoon without any formal judgments. 4. In holding that the pretended judgment filed in the clerk’s office was not necessary, but if it was, it was sufficient. 5. In holding that the executions issued under said pretended judgment were [375]*375good and regular, and that the defendant had the right to proceed with'the sale of plaintiff’s land thereunder.”
It seems that the proceedings in the first action were perfectly ■ regular — certainly down to the decree of Judge Witherspoon, October 23, 1885, and therefore that decree finally and conclusively adjudged against the defaulting executors every matter necessarily involved in that issue. It was as to them res adjudieata. But it is urged that the paper judgment and the two executions subsequently issued to carry that judgment into effect, were so irregular and defective as to make them absolutely void and incapable of being executed. Exceptions 1, 2, and 5 make the point, substantially, that the judgment being against the defendants, as executors of William Gowan, deceased, the execution could only issue against them de bonis testatoris, and that before an execution could issue against them de bonis propriis, a second action was necessary, suggesting a devastavit.
We think this view overlooks the fact that the proceeding is a suit in equity for the payment of a legacy (or part of it). All the authorities agree that there is a difference as to the remedies against executors in equity and at law. When executors are sued at law for a debt of their testator, the first action is merely to establish the debt, and if proper pleas are interposed, the judgment is only de bonis testatoris, but the execution runs de bonis ■propriis as to the costs: and then before recovery of the debt, it is necessary by some second proceeding to establish the existence of assets, or, as it is called, a devastavit. In New York this second proceeding is before the “surrogate” for an account, while in this State it is by. a second action, suggesting a devastavit. See Trimmier v. Thomson, 19 S. C., 247. But when the suit is in equity for a legacy and in that suit, there is an accounting, in which it appears that there are assets in the hands of the executors, then there is no necessity for the “surrogate” or a second action or anything of the kind. The question of assets has already been determined.
Now, in this case assets were established, first, by the failure of the executors to appear and plead plene administravit, which is a conclusive admission of assets; and, second, assets wore actually found by the referee, and confirmed by the court. For [376]*376what purpose could there be a second proceeding of any kind ? The matter of assets was conclusively adjudged against the executors. The decree of Judge Witherspoon did direct the executoi’s to pay the $200, as executors ; but as he had just decided that those executors had assets in their hands, he, of course, ex necessitate, intended the execution to be de bonis propriis, the word “executors” being merely deseripAio personarum. An execution in which the word “executor” or “administrator” is added to the defendant’s name, without anything further to indicate that it is against him in his representative capacity, may be treated as against him personally, and levied on his property. Tinsley v. Lee, 51 Ga., 482.
We think the last execution rightly issued against the executors de bonis propriis. They had allowed the complaint to be taken pro confesso against them, and that was the admission of assets. In discussing the remedies against executors in equity, Mr. Williams says: “If the plaintiff’s demand be uncontroverted or proved, he is entitled to immediate payment, without taking the account. * * The general rule is, that the admission of assets by an executor or administrator can never be retracted in a court of equity, unless a case of mistake is most clearly established.” 3 Wms. Exors., p. *2049. The whole doctrine was thus condensed by Judge O’Neall, in the case of Ford v. Administrator of Rouse, Rice, 220: “In this State a devastavit can only be established against an executor or administrator : (1) by establishing the testator’s debt by matter of record (i. e., a judgment recovered against the executor or administrator de bonis testatoris). (2) Assets admitted by the defendant’s plea, confession, or default, or found by the verdict of a jury on and against the plea of plene administravit generally, or praeter; and (3) that the defendant has wasted such assets. The only other mode of reaching an administrator personally [that was the ease of an administratorj is by an account before the ordinary or in equity, preparatory to a suit on his bond,” &c. See De La Howe v. Harper, 5 S. C., 472.
The other exceptions relate to the defects and clerical irregularities in the form of the judgment and the executions. The court, in the interest of justice, exercises the power of amend[377]*377ment very liberally, particularly when the rights of the parties have been adjudicated, and the irregularities appear in process issued to enforce the judgment. Mr. Freeman, who is the authority on judgments and executions, in section 63 of his “Executions,” cites with approbation our own case of Bordeaux ads. The Treasurers (3 McCord, 144), where Judge Colcock said: “When we advert to the doctrine of amendments, and the cases which have been decided on that subject, it will be perceived that the object of the whole system is to provide a remedy for the casual omission or negligence of the different officers of courts; in a word, to enable the party to do that which the law and facts of the case would have authorized or did require the officers to have done. The decisions on the subject are so numerous, and amendments so common, and I may almost say unlimited, that the difficulty is in selecting such cases as seem most directly to apply,” &c. See Huggins v. Oliver, 21 S. C., 155. It was held in Clark v. Melton (19 S. C., 507), “that the judgment formula does not constitute the judgment of the court, nor does the dating or signing by the clerk with his official signature add anything to its intrinsic character. The judgment issues from the court, not from the attorneys or the clerk. It precedes the formula and is authority upon which it is prepared, but the formula constitutes no part of the judgment. It is only evidence of the existence of the judgment, and entitles the plaintiff to have it enforced.” We cannot say that the Circuit Judge committed error in refusing to declare the proceedings void.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.