The opinion of the Court was delivered by
Mr. Justice Gary.
The main question in this case is whether a certain note was signed, as appears upon the face thereof.
J. W. Jenkins departed this life intestate, on the 31st of March, 1907, and this action was commenced on the day of October, 1907, for the purpose of settling his estate.
In pursuance o-f an order requiring creditors to' prove their claims before the master, the defendant, J. H. Jenkins presented a note, o-f which the following is a copy:
“$600.00. Greenville, S. C., Oct. 30, 1906.
December 1st, after date, we, or either of us, promise to pay to J. H. Jenkins or order, negotiable and payable at
Greenville, S. C., without offset, six hundred dollars, value received, with interest from date at the rate of eight per cent, per annum; said interest to be paid annually, and if not so paid to become principal and draw interest at the same rate. In case this note is collected by an attorney, by suit or through court, we also agree to pay all cost and expenses, including ten per cent, attorney’s commissions.
P. O. Maiuedin. J. W. Jenkins.
Due December 1, 1907.”
The appellant, and the guardian of the infant defendants, “denied the validity of the note, and denied that said J. W. Jenkins signed or executed the same.”
The master in his report says: “The only issue involved is the execution and delivery of the note in question. After argument of counsel and the closing of the reference, on the 15th day of January, 1908, the master was so impressed with the importance of having the benefit of the testimony of experts on handwriting, in order to1 arrive at a correct and safe decision as to the genuineness of the signature in question, that he suggested that the reference be reopened and expert testimony of this character be taken. With consent of counsel other references were held, and the testimony of five cashiers and tellers of four banks of the city of Greenville were taken. After careful consideration of the testimony, as well as the manner and bearing of the witnesses on the witness stand, I am satisfied that the signature of the note in question was never written by J. W. Jenkins, and is, therefore, not genuine. • This decision has been arrived at, not only by the testimony of the living witnesses, and their manner and bearing on the witness stand, but also by careful inspection, under a magnifying glass, of the signature in question, and comparison to it with the many signatures of said J. W. Jenkins,'admitted to be genuine, brought in evidence. J. W. Jenkins, as shown by these signatures, wrote his name heavily, but with rapidity and ease, showing steady movements of the wrist and unhesi
tating marks and lines. The signature in question is heavy, but has the appearance of having been made so by shading the letters after they were written. It has the appearance of having been written slowly and with nervous hesitation.
“Just after making the letter n, before k, in Jenkins, the writer either lifted his pen from the paper or hesitated, as is shown by the plainly discernible dot to the stem of the k. It has a loop at the top, just like the loop to the stem of the k in the body of the note in question, admitted to have been written by the claimant, J. H. Jenkins. None of these peculiarities appear in the admitted signatures of J. W. Jenkins put in evidence.”
His Honor, the Circuit Judge, in a formal order, reversed the master’s findings of fact and conclusions of law.
From this order the plaintiffs appealed.
1
The first question that will be considered is whether the findings of fact by his Honor, the Circuit Judge, are subject to review by this Court. The Court, in the exercise of its chancery powers, unquestionably had jurisdiction to administer the assets of the said estate. Incidental to the exercise of such jurisdiction was the power to require creditors to prove their claims against the estate, and if deemed advisable to enjoin them from proceeding elsewhere.
Thomson
v.
Palmer, 2
Rich. Eq., 32. Under such circumstances, issues arising during the progress of administration must be regarded as equitable in their nature, and, therefore, reviewable by this Court.
2
The next question that will be considered is whether there was error in ruling “that forgery of the note would not be presumed, and that the burden was upon the objectors to the alleged note to prove, by the preponderance of the evidence, that the same was forged.”
The burden of proof did not rest upon the objectors until the defendant, J. H. Jenkins, made a
prima facie
showing that the note was signed by J. W. Jenkins.
Thames
v.
Rouse,
82 S. C., 40. But as such showing was made, the ruling was not prejudicial to the rights of the appellant.
We proceed to the consideration of the question, whether the preponderance of the evidence is against the finding of fact by the Circuit Judge, that the note was signed by J. W. Jenkins.
3
In addition to the findings of fact by the master, there are several other circumstances which satisfy us that the Circuit Judge erred in sustaining the exceptions to the master’s report.
1. The fact that J. H. Jenkins had the blank note in his pocket.
2. The preponderance of the evidence, which showed that J. W. Jenkins was not at Greenville on the day the note is alleged to have been signed.
3. The silence of J. H. Jenkins as to the existence of his claim, under the following circumstances brought out during the examination of the plaintiff, Nora Jenkins:
“Q. Were you present the day letters of administration were granted Mrs. Mettie Jenkins? A. Yes, sir. Q. Did you hear the conversation between the probate judge and parties present, as to the indebtedness of your father’s estate? A. Yes, sir. Q. I will ask you whether or not the question was asked in the presence of J. H. Jenkins and yourself and Mrs. Mettie Jenkins, and also to whom, if there was any other indebtedness against the estate, other than the Caldwell note? A. Yes,'sir. Q. Did Mr. Jenkins make any reply? A. Yes, sir. Q. What was his reply? A. That he didn’t think he owed any except the $3,000.”
4. The failure to give notice that he held the note until the 5th of November, 1907.
5. The fact that he was indebted to J. W. Jenkins at the time the note is alleged to have been executed.
The only other question is raised by the respondent’s attorneys.
4
The attorneys for Mettie Z. Jenkins, and for the heirs at law of J. W. Jenkins, failed to serve a proposed case and exceptions within thirty days after service of the notice of intention to appeal.
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The opinion of the Court was delivered by
Mr. Justice Gary.
The main question in this case is whether a certain note was signed, as appears upon the face thereof.
J. W. Jenkins departed this life intestate, on the 31st of March, 1907, and this action was commenced on the day of October, 1907, for the purpose of settling his estate.
In pursuance o-f an order requiring creditors to' prove their claims before the master, the defendant, J. H. Jenkins presented a note, o-f which the following is a copy:
“$600.00. Greenville, S. C., Oct. 30, 1906.
December 1st, after date, we, or either of us, promise to pay to J. H. Jenkins or order, negotiable and payable at
Greenville, S. C., without offset, six hundred dollars, value received, with interest from date at the rate of eight per cent, per annum; said interest to be paid annually, and if not so paid to become principal and draw interest at the same rate. In case this note is collected by an attorney, by suit or through court, we also agree to pay all cost and expenses, including ten per cent, attorney’s commissions.
P. O. Maiuedin. J. W. Jenkins.
Due December 1, 1907.”
The appellant, and the guardian of the infant defendants, “denied the validity of the note, and denied that said J. W. Jenkins signed or executed the same.”
The master in his report says: “The only issue involved is the execution and delivery of the note in question. After argument of counsel and the closing of the reference, on the 15th day of January, 1908, the master was so impressed with the importance of having the benefit of the testimony of experts on handwriting, in order to1 arrive at a correct and safe decision as to the genuineness of the signature in question, that he suggested that the reference be reopened and expert testimony of this character be taken. With consent of counsel other references were held, and the testimony of five cashiers and tellers of four banks of the city of Greenville were taken. After careful consideration of the testimony, as well as the manner and bearing of the witnesses on the witness stand, I am satisfied that the signature of the note in question was never written by J. W. Jenkins, and is, therefore, not genuine. • This decision has been arrived at, not only by the testimony of the living witnesses, and their manner and bearing on the witness stand, but also by careful inspection, under a magnifying glass, of the signature in question, and comparison to it with the many signatures of said J. W. Jenkins,'admitted to be genuine, brought in evidence. J. W. Jenkins, as shown by these signatures, wrote his name heavily, but with rapidity and ease, showing steady movements of the wrist and unhesi
tating marks and lines. The signature in question is heavy, but has the appearance of having been made so by shading the letters after they were written. It has the appearance of having been written slowly and with nervous hesitation.
“Just after making the letter n, before k, in Jenkins, the writer either lifted his pen from the paper or hesitated, as is shown by the plainly discernible dot to the stem of the k. It has a loop at the top, just like the loop to the stem of the k in the body of the note in question, admitted to have been written by the claimant, J. H. Jenkins. None of these peculiarities appear in the admitted signatures of J. W. Jenkins put in evidence.”
His Honor, the Circuit Judge, in a formal order, reversed the master’s findings of fact and conclusions of law.
From this order the plaintiffs appealed.
1
The first question that will be considered is whether the findings of fact by his Honor, the Circuit Judge, are subject to review by this Court. The Court, in the exercise of its chancery powers, unquestionably had jurisdiction to administer the assets of the said estate. Incidental to the exercise of such jurisdiction was the power to require creditors to prove their claims against the estate, and if deemed advisable to enjoin them from proceeding elsewhere.
Thomson
v.
Palmer, 2
Rich. Eq., 32. Under such circumstances, issues arising during the progress of administration must be regarded as equitable in their nature, and, therefore, reviewable by this Court.
2
The next question that will be considered is whether there was error in ruling “that forgery of the note would not be presumed, and that the burden was upon the objectors to the alleged note to prove, by the preponderance of the evidence, that the same was forged.”
The burden of proof did not rest upon the objectors until the defendant, J. H. Jenkins, made a
prima facie
showing that the note was signed by J. W. Jenkins.
Thames
v.
Rouse,
82 S. C., 40. But as such showing was made, the ruling was not prejudicial to the rights of the appellant.
We proceed to the consideration of the question, whether the preponderance of the evidence is against the finding of fact by the Circuit Judge, that the note was signed by J. W. Jenkins.
3
In addition to the findings of fact by the master, there are several other circumstances which satisfy us that the Circuit Judge erred in sustaining the exceptions to the master’s report.
1. The fact that J. H. Jenkins had the blank note in his pocket.
2. The preponderance of the evidence, which showed that J. W. Jenkins was not at Greenville on the day the note is alleged to have been signed.
3. The silence of J. H. Jenkins as to the existence of his claim, under the following circumstances brought out during the examination of the plaintiff, Nora Jenkins:
“Q. Were you present the day letters of administration were granted Mrs. Mettie Jenkins? A. Yes, sir. Q. Did you hear the conversation between the probate judge and parties present, as to the indebtedness of your father’s estate? A. Yes, sir. Q. I will ask you whether or not the question was asked in the presence of J. H. Jenkins and yourself and Mrs. Mettie Jenkins, and also to whom, if there was any other indebtedness against the estate, other than the Caldwell note? A. Yes,'sir. Q. Did Mr. Jenkins make any reply? A. Yes, sir. Q. What was his reply? A. That he didn’t think he owed any except the $3,000.”
4. The failure to give notice that he held the note until the 5th of November, 1907.
5. The fact that he was indebted to J. W. Jenkins at the time the note is alleged to have been executed.
The only other question is raised by the respondent’s attorneys.
4
The attorneys for Mettie Z. Jenkins, and for the heirs at law of J. W. Jenkins, failed to serve a proposed case and exceptions within thirty days after service of the notice of intention to appeal. Thereafter said attorneys served notice that they would make a motion before his Honor, Judge Prince, for an order extending the time, which was granted. The attorney for J. H. Jenkins gave notice of intention to appeal from said order. He also gave notice that he would move to sustain the order of his Honor, Judge Klugh, and to reverse the order of his Honor, Judge Prince, upon certain grounds set out in the notice of motion. It does not appear from the record that the attorney for J. H. Jenkins interposed any objection to the last mentioned order, nor does the record disclose the grounds of objection when the motion was made. Therefore, the grounds mentioned in the notice, upon which the attorney for J. H. Jenkins makes the motion in this Court, to reverse the order of Judge Prince, are not properly before this Court for consideration.
It is the judgment of this Court that the judgment of the Circuit Court be reversed.
■Messrs. Chief Justice Jones
and
Justice Hydrick
concur in the result.