Opinion
13374
March 28, 1932.
Before DENNIS, J., Hampton, March, 1930. Appeal dismissed and decree affirmed.
In the matter of the estate of Mrs. M.J. Youmans, deceased. J.V. Youmans was appointed administrator, and thereafter R.O. Bowden was appointed co-administrator, against the objections of Lillian Z. Chisolm and others. From a judgment reversing the order of the Probate Court appointing J.V. Youmans and R.O. Bowden co-administrators and remanding the cause to the Probate Court with directions, J.V. Youmans individually and as administrator, and R.O. Bowden as administrator, appeal.
The decree of Judge Dennis follows:
ORDER AND DECREE OF JUDGE DENNISThis matter came before me on the appeal of Lillian Z. Chisolm, Lizzie Lee Zahler, Mamie Sue Rivers, and Ina Y. Rivers, by and through their attorneys, Hugh O. Hanna, Esq., and Randolph Murdaugh. Esq., from the order and decree of her Honor, Mrs. H.C. Hiers Judge of Probate, dated October 20, 1930, appointing R.O. Bowden as coadministrator of the estate of J.B. Youmans, deceased, with J.V. Youmans. Hugh O. Hanna, Esq., and Randolph Murdaugh, Esq., were present representing the above-named persons, and George Warren, Esq., was present representing J.V. Youmans and R.O. Bowden.
The matter was heard by me at Hampton, S.C. on the 4th day of March, 1931, on the notice of intention to appeal by the above-named persons, hereinafter referred to as appellants, the same being heard on the certified record, on the original record of the estate herein on file in the office of the Judge of Probate, including the testimony taken in said Court on March 18, 1930, at Hampton, S.C. and the several orders on file in said cause, including the order appealed from by H.C. Hiers, Judge of Probate, and the order of his Honor, Judge Johnson, dated April 11, 1930.
For a full understanding of the matters involved in the appeal, a consideration of the entire record was necessary together with a consideration of the appeal and grounds stated therein. A brief statement of the matters immediately pertinent to the consideration of the appeal is next set out.
The record discloses that J.B. Youmans departed this life intestate on August 20, 1928, seized and possessed of considerable real estate and personal property. The deceased's widow, Mrs. M.J. Youmans, was appointed and qualified as administratrix of the estate and died prior to a full administration of the estate. J.V. Youmans applied to be appointed administrator, and Lillian Z. Chisolm and Mamie Sue Rivers filed petition for the appointment of Mrs. Chisolm as administratrix. The matter was heard by the Judge of Probate and the testimony in the record taken, reference to which is craved as often as may be necessary. The heirs of the estate were J.V. Youmans, a son, and five daughters; the appellants being four of the daughters. The four daughters testified that they were willing for J.V. Youmans to be one of the administrators but desired a co-administration of the estate and requested the appointment of Mrs. Chisolm, or in her stead and representing them and the estate, J.M. Rivers, the husband of one of the appellants. Judge B.R. Hiers, by order dated March 18, 1930, appointed J.V. Youmans sole administrator. The appellants appealed from said order and same was heard by his Honor, J. Henry Johnson. He rendered a decree and order dated April 11, 1930, as will appear by reference to said order, holding, among other things that: "From the record and testimony, I find and hold that it will be to the best interest of the estate that a co-administration be had, and that it was error to appoint J.V. Youmans sole administrator; it is therefore, ordered, adjudged and decreed, that the order of his Honor, B.R. Hiers, Judge of Probate, appointing J.V. Youmans sole administrator, be and same hereby is reversed and the cause is hereby remanded to the Probate Court with the direction that co-administration be granted by said Court so as to carry out the terms of this order."
George Warren, Esq., as attorney for J.V. Youmans, served an appeal from this order to the Supreme Court. Later the appeal on motion of Mr. Warren was withdrawn and dismissed.
Stated briefly, and in chronological order, I find from the record, and the statements made in open Court, that subsequent to the withdrawing of the appeal and shortly thereafter, Hugh O. Hanna, Esq., attorney, on the morning of October 21, 1930, talked with R.O. Bowden and informed him that he had been informed that he was to be appointed one of the administrators in this estate and stated to him that his appointment would not be acceptable to the appellants and would be objectionable to them. On the afternoon of October 21, 1930, Hugh O. Hanna, Esq., and Randolph Murdaugh, Esq., went to the office of the Judge of Probate and searched the records and did not find any order appointing coadministrators or any order bearing on said appointment in the file. Their affidavit shows that Mrs. Hiers was asked if any such order had been passed and they were informed that no order had been made or filed by her. The said attorneys then requested that a hearing be granted to them before any action was taken in the appointment of coadministrators. Without such a hearing being granted, the order of Mrs. Hiers herein appealed from dated October 20, 1930, was filed, and on the morning of October 22, 1930, a copy thereof was received by said attorneys from the said Judge of Probate. On the morning of October 22, 1930, before the said R.O. Bowden had given his bond as coadministrator, a notice was filed with Mrs. Hiers as Probate Judge that in the event she did file the order appointing J.V. Youmans and R.O. Bowden coadministrators, the appellants would appeal. The notice stated that it was given at that time "so as to prevent any bond being given or attempted to be given by either or both of said persons." A bond was filed by R.O. Bowden on October 22, 1930, which was after the notice to him that his appointment would be contested by the appellants.
The appeal from the order of Mrs. H.C. Hiers, Judge of Probate, was heard by me as stated above.
The record shows that R.O. Bowden is a stranger to the estate, is not related to the parties, and is not a creditor of said estate. It is my construction of Judge Johnson's order, and I so hold as a matter of law, that the appointment of coadministrators would have to come from the class or classes designated under Section 5382 of South Carolina Code 1922, Volume 3, unless one or more of the designated class or classes applying for letters of administration is or are disqualified for some good reason, such as incompetency, etc., and that the selection would have to come from the children of the deceased. J.V. Youmans states in his testimony that as to the fitness or ability of Mrs. Chisolm, or any of the other appellants, he has nothing against them, and in his testimony before the Probate Court he testified that the only reason he did not desire to serve with Mrs. Chisolm as coadministrator was because it would inconvenience him and that he had no other objection to offer. The records show that she is qualified and capable of serving. The appellants each own a one-sixth undivided interest in the property, and collectively own four-sixths thereof; J.V. Youmans and the other daughter, Mrs. Rozena Dowling, each being entitled to one-sixth undivided interest. It is their property, and the owners of property have a right to have some voice in the handling and administration thereof.
I hold as a matter of law that the Probate Judge, Mrs. H.C. Hiers, committed an error of law and an abuse of judicial discretion in appointing R.O. Bowden, a stranger to the estate, as coadministrator. Further, there was no application or petition by the said R.O. Bowden, or any one for him to be appointed a coadministrator and no notice to any one and no citation and no hearing had, granted, or given to any one with respect to his appointment as coadministrator. This I hold to be another error of law on the part of the Probate Judge. It is therefore ordered, adjudged, and decreed that the order of her Honor, Mrs. H.C. Hiers, Judge of Probate, issued herein appointing J.V. Youmans and R.O. Bowden coadministrators, be and the same hereby is reversed and the cause is hereby remanded to the Probate Court with the direction that a coadministration be granted by said Court so as to carry out the terms of this order and to appoint a qualified person under the law in the place of R.O. Bowden.
In the event that R.O. Bowden and the parties interested in this case accept this order without putting the estate to any further cost or delay, then the two administrators when appointed shall pay the bond premium on the bond of R.O. Bowden; however, if this order is contested and the estate put to further expense, then the said R.O. Bowden shall pay the premium and the estate shall in no way be liable for the same.
Mr. George Warren, for appellants, cites: Where next of kin waive claims to administration they have no right in selection thereafter: 59 Ga. 268; 28 N.J. Eq., 236; 56 Cal., 407; 16 Ky., 50; 83 S.C. 124; 65 S.E., 207. Within discretion of Court to appoint two administrators where estate is large: 18 Cyc., 114; 1 So., 820; 24 N.H. 126; 49 N.J. Eq., 558; 24 Atl., 962; 5 N.Y., 497; 41 Atl., 1000; 17 S.C. 22; 2 Strob., 335. Male next of kin will be appointed before female: 141 Cal., 538; 75 Pac., 175; 132 Cal., 401; 64 Pac., 691; 19 Md., 1; 55 N.J. Eq., 764; 37 Atl., 952. Superior fitness may strengthen preference: 76 N Y Supp., 461; 37 Atl., 952; 3 Atl., 804; 26 N.E., 73. Abuse of discretion: 146 N.E., 263; 251 Mass. 159; 127 N.E., 454; 155 S.C. 179; 152 S.E., 176; 108 S.C. 49; 93 S.E., 243; 96 S.C. 34; 79 S.E., 791; 140 A., 205; 154 Md., 267; 205 Md., 382; 171 N.W., 397; 251 S.W., 756; 109 So., 184. Where next of kin waive right and creditors object a stranger may be appointed: 48 Pac., 330; 93 Md., 269; 48 Atl., 827; 77 S.W. 110; 65 Mich., 614; 32 N.W., 841; 95 N.C. 353; 2 Hill, 347; 18 Tex., 616; 25 Wn., 430; 65 Pac., 793; 30 W. Va., 212; 3 S.E., 580; 17 S.C. 22; 56 Ala., 539; 48 S.E., 40. Right to appoint can be waived: 38 S.C. 41; 16 S.E., 286; 46 Pac., 296; 18 Cyc., 98; 83 S.C. 124; 65 S.E., 207. Removal of administrator: 18 S.C. 396; 105 S.E., 275; 115 S.C. 145.
Messrs. H.O. Hanna and Randolph Murdaugh, for respondents, cite: Court may appoint administrator but must come from class designated: 96 S.C. 34; 79 S.E., 791; 3 Brevard, 520; 2 Strob., 335.
March 28, 1932. The opinion of the Court was delivered by
A clear statement of the facts and issues of law involved in this family controversy appears in the decree of Judge Dennis, from which this appeal comes. This Court is satisfied with that decree and adopts it as the opinion of the Court.
Appellants' argument proceeds largely on the theory that respondents have waived their right to the appointment of any one of them as administrator. We can find no evidence of such waiver. It was said in Griffith v. Newell, 69 S.C. 303, 48 S.E., 259, 260: "The uncontradicted evidence was that Newell was constantly demanding the full number of convicts under his contract, and that the necessities of his farming operations compelled him to receive whatever number of convicts he could get. The fact that he paid for what he received, while demanding his rights under the contract would not justify an inference that he waived his rights. * * * Where a party insists on carrying out the contract all the time, it is not a waiver."
Appellants, in support of their plea of waiver, rely upon the fact that respondents asked for the appointment of one or the other of themselves along with J.V. Youmans, their brother, as administrator; failing this, they requested the appointment of J.M. Rivers, the husband of one of their number, as an administrator agreeable to them. It appears to us that so far from this being evidence of waiver, it is evidence of the fact that respondents were insisting upon having a joint administrator who was representative of their rights and interests. Rivers was the husband of one of them, the brother-in-law of the others, and was suggested as their representative.
Appellants argue elaborately and ably, and with the citation of many authorities, that the appointment of a coadministrator was within the discretion of the Probate Judge, and that there was no abuse of that discretion in appointing R.O. Bowden, a stranger to the estate, as joint administrator.
In the case of Tunstall v. Lerner Shops, Inc., 160 S.C. 557, 159 S.E., 386, 388, this Court said: "As to this point, we need only repeat what we have recently said on more than one occasion, namely, that the term `abuse of discretion' is a strict legal term, indicating that the appellate Court is simply of the opinion that there was commission of an error of law in the circumstances." Citing Barrett v. Broad River Power Company, 146 S.C. 85, 143 S.E., 650.
The "circumstances" set out in the transcript of record in this appeal abundantly sustain the conclusion of the Circuit Judge that there was here an abuse of discretion on the part of the Probate Court.
The appeal is dismissed. The decree of Judge Dennis is affirmed and made the judgment of this Court. Let it be so published.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER concur.
ON PETITION FOR REHEARING
MR. JUSTICE BONHAM:
The Court has given careful consideration to the questions made by the petition for rehearing in the above-stated cause. It does not find that it has overlooked, nor failed to determine, any material issue made by the appeal. It did not specifically refer to that made by Exception 5, which imputes error to Judge Dennis for that his decree provided that, if his order be contested and the estate put to further expense by an appeal from that order, R.O. Bowden shall pay the premium on his administrator's bond, and the estate shall in no way be liable for the same. The effect of the decision of this Court which declared the appointment of R.O. Bowden as administrator to be invalid was to hold the estate to be free from liability for the premium on his bond. Thus the question of the power of Judge Dennis to provide that if Bowden appealed from his order the estate should not be liable for the premium on his bond, became academic. We know of no law which authorizes one whose appointment as administrator of an estate has been declared by the Court to be invalid to charge to the estate the sum which he has paid as premium on his bond. Until the passage of the Act of the Legislature incorporated in the Civil Code of 1932 as Section 8959, an administrator had no right to charge such item of expense to the estate; he must bear it out of his commissions. It would be a far stretch of the privilege given in the act to extend its benefit to one whose appointment has been pronounced invalid.
The petition for rehearing is refused.
Let this order be reported with the case.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER concur.