Bollman v. Wamer

The opinion of the court was delivered by Me. Justice Pope.

The complaint of the plaintiff alleged ■that David A. Warner departed . this life, in Colleton County, .in this State, on the ,12th'day. of. July, 1890, and. that John 0. Warner, his brother, obtained • letters of administration .of his *467 personal estate on the 15th September, 1890; that the intestate was, “at the time of his death, seized in fee and. in possession of considerable real estate of great value, and a large amouut of personal property, as the plaintiff is informed and believes;” that such administrator has made no proper rettírns of the personal property of his intestate, but only a return made of a few articles of little value, and that no return is made of certain, mules, horses, tools, distillery, and other valuable personal property which came into the hands of the administrator; that, notwithstanding the valuable personal property and real estate of his intestate, the administrator has suffered the defendants, Appleby & Company, to take two judgments against him as such administrator in thecourtof atrial justice, one for $38.64, and the other for $80.76; that transcripts of such judgments, aggregating $119.40, have been filed in the office of the clerk of court for Colleton County, executions have been issued thereon, and, in pursuance thereof, Robert Black, as sheriff of Colleton County, has levied upon, and advertised for sale, to pay such two judgments, aggregating $119.40, a tract of land of intestate’s estate, containing 450 acres, and of the value of $5,000; that the plaintiff is a creditor of the estate of intestate for nearly $1,000, and that he is informed that there are other creditors of the estate of the intestate. The administrator, Appleby & Company, and Robert Black, the sheriff, are made parties defendant.

The relief prayed for is, first, a judgment for plaintiff for the debt, due by intestate against the administrator; second, that the sheriff be enjoined from making a sale of the lands or any other property of the intestate; third, that Appleby & Company and all other creditors be enjoined from prosecution of their claims by action at law, and that all creditors be required to prove their claims in this cause; fourth, that the assets of said estate be marshaled, that a receiver be appointed, and the further settlement of said estate be had in this court; fifth, for such other relief, &c.; sixth costs.

This complaiut was verified, and, upon an application thereunder by the plaintiff to his honor, Judge Aldrich, at chambers, on 27th January, 1892, an order was granted, requiring *468 the defendants to show cause before his honor, Judge Wither-spoon, at chambers, at Walterboro, on th.e 15th of February, 1892, why the sale of the lands of D. A. Warner, deceased, described in the complaint, should uot be enjoined until the final determination of the court, and why, in the meantime, a receiver should not be appointed to take charge of the estate of D. A. Warner, deceased, and administer the same, under the direction of this court; and that, in the meantime, the defendant, Robert Black, be enjoined from selling the lands advertised, or other lands or property of the intestate’s estate.

At the hearing of this rule to show cause before Judge Witherspoon at chambers, the plaintiffs submitted an affidavit from one of plaintiff’s attorneys, wherein, amongst other things, it is alleged on information and belief that he has heard that D. A. Warner had other lands besides the tract advertised by the sheriff for sale, but that one parcel has been assigned to the family of the intestate as a homestead, and the other sold to a firm in Charleston under a self-closing mortgage, and all without objection on the part of the administrator. The defendants, Joel C. Warner, as administrator, and Appleby & Company, made very full returns, and amongst other things showed that the respondent, administrator, had caused an appraisement of the personal property of intestate to be made and returned to the Probate Court; that, on his petition, a sale was ordered by the Probate Court, and that he made such sale, but that of the proceeds of the same ($1,035), the sum of $1,014 was consumed in paying a chattel mortgage thereof, held by Sileox & Carrigan, for $1,000, and the costs of sale, leaving a balance on hand of $24; that he had collected from the rents due the estate of his intestate during the year he died, the sum of $167, and of this amount had paid $53 for taxes, leaving a balance of $113.85. The $24 (balance of sale) and the $113.85 had been applied to payment of counsel fees and a sum reserved for taxes.

1 Thus by his showing the personal estate in his hands is exhausted. and there is nothing more expected to cometo him, except he has used and is using every endeavor to collect rents and otherwise realize upon assets to pay the debts. *469 Upon what, principle of law he is proceeding to collect rents of land, we are not informed. What business an administrator has in interfering with rents after the year of his intestate’s death, we are unable to conceive. It is very clear that, after the year of intestate’s death, the rents belong to the heirs at. law until impounded by some proceeding in equity. It is thus made manifest by this return of the administrator that the personal assets of the estate of the intestate are exhausted.

The returns go further, they admit, the judgments of Appleby & Company, on two accounts held by that firm against intestate; that they have been transcripted and lodged in the office of the clerk, &c., and execution issued, land levied upon, advertised for sale, and no step taken by the administrator to prevent two judgments for $119 selling a $5,000 tract of land. Yet he says the plaintiff has abundant remedy at law, or in the Probate Court, and no status whatever in the Court of Equity.

On the hearing of the return and the rule, his honor, Judge Witherspoon, agreed with the respondents, and dismissed the rule dissolving the injunction and refusing the appointment of a receiver. The plaintiff now appeals.

2 It must be borne in mind that the hearing before Judge Witherspoon was at chambers, and not on the merits, but purely upon the rule to show cause why the injunction should not issue to prevent a sale of the lands in question and a receiver appointed. Under the decisions of this court in Kinard v. De Walt, 19 S. C., 286, this being a motion preliminary to the hearing on the merits, it would have been error in Judge Witherspoon to grant a larger relief than that within the scope of the limits fixed by the order of Judge Aldrich.

3 It must also be borne in mind that the defendants, by the ample information conveyed to the court by their sworn answers and the exhibits accompanying the same — an action entirely voluntary on their part — have re-enforced the allegations of fact in the complaint, so that at the hearing before Judge Witherspoon, he was not confined to the weakness of plaintiff’s showing as'to the two issues alone before him, but *470 the solemn admissions of the defendants greatly strengthened an otherwise, so to speak, weak cause as made by the plaintiff. Let us see if this is not true. The plaintiff alleged that the personal estate was large. The defendants show by their return that it was not, and that what there was has been legally exhausted, so that now there is not a dollar of personal property in the hands of the administrator. The plaintiff alleged that intestate was seized of large and valuable real estate. The return does not contradict Mr. Murphy’s affidavit, that all but the 450 acre tract has been taken from the estate without any objection by the administrator, respondent. The plaintiff alleged that other debts besides that held by himself were owing by the estate of the intestate. The return does not deny these facts.

4 The parties to this rule, on both sides, seem to ignore the right of the children of David A. Warner to be heard, when they seek, on one side, to have the estate settled in the Court of Equity. By law, the title to all the lands of the intestate were devolved, by operation of law, on the death of D. A. Warner, on his children, whose names, ages, and whereabouts are well known to each of these parties, as disclosed by the “Case” here. The court cannot act upon these lauds without their presence before it as parties to this cause; the title must be before the court. To the hearing of this rule, it may not be necessary that these children be parties as yet, add in the power of amendments there is great efficacy.

5 We think the weakness in the plaintiff’s complaint, by the allegation of such great value to the lands of intestate, it being so largely in excess of the aggregate of plaintiff’s and defendant Appleby & Company’s claims, may be considered as remedied by the allegation of other outstanding-indebtedness of the intestate, whose amount, as well as holders, is unknown to plaintiff, which allegation is not contradicted by respondents.

4 The restraining order should have been continued, and it is the judgment of this court, that the order of Judge Wither-spoon be reversed, and the cause remanded to the Circuit Court, with directions to grant such au order, provided the plaintiff applies at once to amend the complaint by *471 making the children of David A. Warner, deceased, parties defendant. Upon failure of plaintiff to so move to amend the complaint, that relief should be denied and the complaint dismissed.