Pendergrass v. Pendergrass

1 S.E. 45, 26 S.C. 19, 1886 S.C. LEXIS 178

• Court: Supreme Court of South Carolina
• Decided: November 27, 1886
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McGowan.'

To have a clear view.of the points made in this case, it is necessary to make a short statement. Many years ago (1854), Preston Worthy died intestate, leaving as his heirs at law his widow, Rebecca, and three children, William W., Mary B., and Preston Worthy, jr., the latter of whom died in his infancy. . The intestate w7as seized and possessed of a considerable personal estate and two tracts of land, the “Broad river” tract and the “home place.” Henry Worthy, brother of the deceased, administered upon his estate, and sold most, if not all. of the personal property. At this sale the widow, Rebecca, was a large purchaser, and gave to the administrator her notes, with David Pendergrass and others as her sureties. She soon after married the said Pendergrass. In 1855 the widow, Rebecca, instituted proceedings in equity, Rebecca Worthy v. Mary B. Worthy et al., for partition of the lands. The administrator, Henry Worthy, admitted that the personal estate was sufficient to pay the debts, and the “Broad river place” was sold and the proceeds divided, under order of the court, leaving the “home place” as a home for the widow and children. In 1866, before the estate was finally settled, Henry Worthy, the administrator, died, leaving a will of which F. B. Worthy is the éxecutor, and since that time there has been no legal representative of the estate of Preston Worthy.

Matters stood in this condition, the estate unsettled and the widow and children living on the “home place,” during the war and down to 1874, when F. B. Worthy, executor of the administrator, sued Rebecca Pendergrass and her surety, David Pendergrass, on the notes for the purchases of the said Rebecca at the sale of the administrator, as before stated, viz., F. B. Worthy, executor, v. Rebecca Pendergrass and David Pendergrass, her surety. In this action it was claimed that the share of Rebecca in the personal estate (including the notes sued on) should be set off against the note for her purchases, which was allowed; and in order to ascertain the amount of that share, the court ordered the plaintiff, F. B. Worthy, executor, to account for Henry’s administration of Preston Worthy’s personal estate. After a protracted litigation, it was finally (in 1885) ascertained that F. B. Worthy, as executor of Henry, was entitled to judgment against Rebecca and David Pendergrass for $2,608.71 and costs, and accordingly judgment was so rendered in the Common Pleas; and in the same accounting it was incidentally ascertained that the estate of Henry, the administrator, was in advance to the estate of his intestate, Preston, in the sum of $1,602.93.

Pending this long litigation in the Common Pleas, William W. Worthy, one of the distributees, instituted proceedings in the Probate Court against F. B. Worthy, as executor of Henry Worthy, entitled W. W. Worthy et al. v. F. B. Worthy, executor, Rebecca Pendergrass, et al., to account for Henry’s administration of the estate of Preston. To this suit all the heirs of Preston Worthy, or their legal representatives, were made parties, and by consent a decree was rendered (1885) precisely in accordance with the result of the accounting in the case above stated of F. B. Worthy, as executor, v. Rebecca Pendergrass and David Pendergrass, establishing that the administrator, Henry, was in advance to his intestate, Preston, in the sum of $1,602.93.

In 1874 David Pendergrass, who had intermarried with the widow, and was living with her on the home place, purchased the interest therein of William W. Worthy, and in 1880 conveyed the same to his two sons, Addison and Joseph Pendergrass. In 1866 Mary B. Worthy, the other distributee, married Waties Pendergrass, and died intestate in 1873, leaving as her heirs and distributees her husband, Waties Pendergrass, and her children, Mary E., Ora, William, Preston, and David Walker. Waties Pendergrass administered upon her estate, and in 1882 instituted this action for partition of the “home place.” None of the heirs answered, but F. B. Worthy came in by petition, claiming that, as executor of Henry Worthy, he had demands against Rebecca Pendergrass to a large amount, which were about to go into judgment against her, to which her share of the lands should be applied; and as these claims were on notes for purchases at the sale of Henry Worthy, as administrator, the share of Rebecca in the land descended should be first applied to them. W. T. D. Oousar & Son also came in, claiming that the share of Rebecca should be first applied to a judgment held by them against her for $296.20, rendered as early as March 18, 1882, on notes bearing date in 1881.

The issues were referred to J. L. Glenn, Esq., as special referee, who held that the advances made by Henry Worthy, as administrator, should be refunded before partition out of the whole land (except the share of W. W. Worthy, which had been “bona fide aliened”); and that the share of Rebecca in the remainder should be applied to the judgments against her, according to their respective dates. On exceptions to this report, the Circuit, Judge held that F. B. Worthy, as the representative of the estate of the administrator, Henry, should be reimbursed the amount which it appeared the administrator was in advance to the estate of his intestate before partition, and that the share of Rebecca in the remainder of the land should be applied to the judgment of P. B. Worthy, executor, in preference to that of Oousar & Son, which was older. From this decree Cousar & Son appeal to this court upon the following exceptions:

“I. Because the decree finds that the judgment rendered' March 26, 1885, in favor of F. B. Worthy, executor, against Rebecca Pendergrass and David Pendergrass, is a preferred judgment to that of Cousar & Son against Rebecca Pendergrass, rendered March 18, 1882; whereas the decree should have found that the judgment of Cousar & Son is a prior and preferred lien to that of F. B. Worthy, executor, on the distributive share of Rebecca in the lands sought to be partitioned herein, and entitled to be first paid.

“II. Because the decree finds that the alleged judgment of March 25, 1885, for $1,602, in favor of the estate of Henry Worthy against the estate of Preston Worthy, is a valid judgment and a first lien on the premises, the subject of this action; whereas the decree should have found that the said alleged judgment of $1,602 is not a valid judgment against the estate of Preston Worthy, because that estate was not represented in the action by an administrator de bonis non, and no claim was made in the pleadings for a debt against the estate of Preston Worthy, and because Rebecca Pendergrass was the only distributee of Preston Worthy, who was a party to the action.

“III. Because the decree finds that the judgment of the Probate Court in the case of W. W. Worthy v. F. B. Worthy, as executor, et al. (May 21, 1885), offered only as evidence of the cause of action in F. B. Worthy, executor, v. Rebecca Pendergrass et al., was not only admissible as evidence against Cousar & Son, who were not parties thereto, but recognizes it as the cause of action itself, and directs that it shall be paid.

“IV. Because the said decree confirms the action of the referee in considering the decree of the Probate Court as proper evidence in reply, when objection was made to it at the time it was offered, and such objection sustained, and then afterwards considered it in making up his report; whereas the decree should have found that the decree of the Probate Court was not competent evidence in reply in any sense, as Cousar & Son were not parties to it, and neither they nor other parties to the action had offered evidence against the cause of action set up in the judgment and decree of F. B. Worthy, executor, v. Rebecca Pendergrass et al. If evidence, it was cumulative only, and, therefore, incompetent.”

This is a pi’oceeding on the equity side of the court for the partition of a remaining tract of land of the estate of Preston Worthy, who died intestate many years ago. It seems that after the death of the intestate, Mrs. Pendergrass, one of the distributees, contracted debts as follows: to the administrator for purchases at the sale of the personalty, upon which, after a long litigation, on March 20, 1885, the executor of the administrator recovered judgment against her and her surety for the sum of $2,608.71. In this action the plaintiff, as executor of the administrator, was ordered to account for his testator’s administration of the estate of the intestate, Preston Worthy; and in that Accounting it appeared that Henry Worthy, the administrator, was, at the time of his death (1866), in advance to the estate of his intestate, Preston, the sum of $1,602.93. In the meantime, in 1881, the said Rebecca had contracted a debt to W. T. D. Cousar & Son, upon which they recovered judgment against her in 1882 for $297.90. The questions are as to the rights of these different parties in the land sought to be partitioned.

While it is true that a distributee has (subject to the payment of all debts of the intestate) legal title to his share of land descended, which may be bound by the lien of a judgment and sold under execution, yet that title is qualified and limited by the right of the co-distributees to have partition of the property. If the judgment is not enforced by a sale before partition, the lien is dissolved, and in the proceeding to partition judgment creditors of distributees need not be made parties, but they may apply to have their respective rights in the proceeds. Rabb v. Aiken, 2 McCord Ch., 119; Keckeley v. Moore, 2 Strob. Eq., 21; Burris v. Gooch, 5 Rich., 6; Riley v. Gaines, 14 S. C., 456.

First, then, as to the claim of F. B. Worthy, as executor of Henry Worthy, to be reimbursed the amount which the administrator, Henry, was in advance to the estate of his intestate, Preston. An administrator is a quasi trustee of the property of the intestate. His duty is to sell it, pay the debts which are primarily payable out of that property, and distribute the remainder. He has no right to encumber the estate by new contracts; but we think it is settled that if, in the administration of the estate, he, in good faith and for the benefit of the estate, pays the debts or obligations of the estate out of his own pocket, he is to that extent said to be in advance to the estate and entitled to be reimbursed out of it. See Watts v. Watts, 2 McCord Ch., 73; Lay v. Lay, 10 S. C., 215; 1 Story Eq. J., § 91; 8 Wins. Exrs. (6 Am. Ed.), *1861, and notes, citing, among other authorities, Munroe v. Holmes, 13 Allen, 109, in which Judge Hoar said: “An administrator is not obliged to incur expenses beyond the means which are placed in his power to discharge them, and he may, and usually does, protect himself by not permitting the estate to become his debtor. But circumstances may exist in which it is certainly not wrong in him, although it may not be a positive duty, to make advances for the benefit of the estate which he administers ; and when by his death or removal he may be unexpectedly deprived of the power to reimburse himself for these advances, when they' have been made in good faith and for the benefit of the estate, we can have no doubt that they in some form become a charge upon the estate in the hands of the succeeding administrator,” &c. In this case, the administrator died many years ago, leaving the estate in an unsettled condition. In the meantime, the war and other causes may have rendered unavailable some of the assets upon Avliich he had a right to rely for the purpose of reimbursing himself. We concur with the Circuit Judge, that E. B. Worthy, as executor of Henry, the administrator, is entitled to be reimbursed the amount which he was in advance to the estate of his intestate, Preston.

It is urged, however, that this- alleged advance had never been judicially ascertained; that there could be no judgment binding the estate of Preston, for the reason that the executor of Henry, the administrator, did not represent the estate of his intestate, Preston, and no administration de bonis non had ever been appointed. The advance claimed could only be made to appear by an accounting of the estate of the administrator represented by F. B. Worthy, as executor. That accounting was taken by order of the court first in the Common Pleas and afterwards confirmed in the Probate Court, where all of the distributees of Preston Worthy were parties, and they did not make the technical objection as to the want of an administrator da bonis non. Besides, the view taken does not rest on the judgment as a lien, but simply upon the satisfactory existence of such advance, like a note called in and proved against the estate of the intestate, and properly brought to the attention of the court. We are judicially satisfied of the fact that such advance was made.

How shall this charge upon the estate be provided for ? The personalty is primarily liable for the payment of all the debts of the intestate, and if there are such assets available, they should be first applied in discharge of the advance, to the relief of the land. If the administrator had lived and received other assets, he would have had the right, without any order of court, and doubtless would have exercised it, to appropriate the first passing through his hands in its payment. As was said in Lay v. Lay, supra: “If the first executor had remained alive and received further sums of money, he would have been, in the ordinary debit and credit account, duly credited with the amount previously overpaid. He would thus have discharged the amount received, and could only be called to account for having distributed unequally, and thus preferred some of the legatees.” We do not see why, the administrator being dead, the same rule should not apply to his executor. If there are assets 'yet to be realized, they should, if available, be collected and applied first to reimburse the estate of the administrator. As we understand it, the judgment for f>2,608.71 did not enter into the accounting of F. B. Worthy, as executor, and is, therefore, additional assets. If that judgment or any other asset is available, it should be collected and applied to the said advances. But if that judgment cannot be realized in whole or in part, and there are no other available assets, then there is nothing of the estate left but the “home place,” the whole of which, not Rebecca’s share alone, is charged with the said advances, which must be first paid out of the proceeds of sale.

Second. Has an administrator, as to a judgment against a distributee for purchases at his sale of the personalty, any right, legal or equitable, to apply the share of that distributee in the lands of the intestate in preference to an older judgment of a stranger against the distributee? No case has been cited deciding the exact point, and we have not been able to find one in or out of the State. Both the real and personal property of a decedent may, in a certain sense, be called “his estate.” The same parties, as heirs or distributees, are entitled to both, and we can appreciate-the view, that, considering the estate as a unit, a distributee, who has received more than his share of the personalty, should not be allowed to get any share of the land until the other parties are made equal to him. But the rules applicable to the two kinds of property are. so very different, that in practice the matter is not free from difficulty. By law, the legal title to the personalty passes to the administrator, who is charged with it for the purposes of administration ; while the land, subject, of course, to the debts of the intestate, does not go to the administrator, but descends directly to the heirs. The duty of the administrator is simply to administer the personal estate. The lands are not chargeable to him, and he has no control over them or the proceeds of their sale. It is true, that if there is a deficiency of assets for the payment of debts, 'the lands also are made assets for that purpose; but that can only be done in the particular manner prescribed by law. A debt for the personalty ,is 'not a debt of the ancestor, but of the administrator, which at his peril he must secure, by bond or otherwise, without the least regard to the fact whether the purchaser may or may not be a distributee and entitled to a share of the lands.

As such, the administrator has no control over the land or its proceeds. Keckeley v. Moore, 2 Strob. Eq., 23; Ex parte Foster, Rice Ch., 19; Garlick v. Patterson, Cheves Eq., 27; Bank v. Inglesby, Speer Eq., 400; Mauldin v. Gossett, 15 S. C., 576; Williams v. McCardell, 14 Id., 221. In the last case cited it was held that, “Where a distributee receives from the administratrix more than his share of the personal estate of his ancestor and then dies, his interest in the ancestor’s real estate cannot be subjected exclusively to the repayment of such excess, but must be applied to the payment of all his debts owing at the time of his death, including such over-payment, in the' order prescribed by statute.” That is this case precisely, except that there the debtor distributee was dead; but we are not able to see what difference that- could make in reference to liens upon the property. If the right contended for here — that the administrator, as creditor, can absorb the whole share of the debtor in the land before other creditors get anything — had existed, it would, as it seems to us, have been applied in that case, notwithstanding the death of the distributee. Relying on the bond and personal security of the purchaser according to the terms of his sale, the administrator took no assignment of, or lien, upon Rebecca’s share of the land; and we cannot clearly see how, as to that interest, he has any higher rights than other creditors.

We think, after the advances to the estate of his intestate by the administrator, Henry Worthy, are refunded as above provided for, that the share of Rebecca in the remainder of the “home place” should be applied as follows: first, to the senior judgment of Cousar & Son, reduced, of course, by all proper credits, and without prejudice to any question as to homestead which the said Rebecca may make, as suggested in the “Brief,” but upon which the Circuit Judge made no ruling; and, second, that the remainder of her share,.as well as that of her late husband, her surety, be applied towards satisfaction of the judgment of F. B. Worthy, executor, against Rebecca Pendergrass and the representative of David Pendergrass, to be distributed by the said F. B. Worthy, executor, among the distributees of Preston Worthy, excluding the said Rebecca, who received in discount her share of the personal estate.

' The judgment of this court is, that the judgment of the Circuit Court be modified so as to conform to the conclusions herein announced, and in all other respects affirmed.