Opinion
14420
January 25, 1937.
Before JOHNSON, J., Marlboro, June, 1935. Affirmed:
Suit by John B. Burkhalter and Mrs. Margaret B. Holladay against Mrs. Pauline Townsend Odom, administratrix of the estate of H.R. Townsend, deceased. From an adverse judgment, plaintiffs appeal.
The order of Judge Johnson follows:
This is an appeal coming before me on exceptions to the order of the probate Court for Marlboro County and was heard by me at the first week of the fall term of the Court of Common Pleas for said county and was reargued at the second week of the said term.
After giving full consideration to each of the exceptions of appellant, as well as to certain matters argued which I did not consider raised by the exceptions, I am of the opinion that the order of the Judge of Probate should be affirmed in each and every respect except as herein changed and modified and it is so ordered:
It appears from the record that Mrs. Pauline Townsend Odom, the widow of the deceased (she having remarried), qualified as administratrix of the estate of H.R. Townsend on July 2, 1928, and no return was filed by her as such administratrix until August 16, 1929. There was an exception to the allowance of administratrix' commissions. Her attorneys, among other grounds, took the position that the appellant having failed to question her right to commissions in the Court below could not raise the question on appeal, and that the Judge of Probate, by accepting her return and allowing commissions in his order, showed clearly that an extension of time was given to her within which to file her first annual return. Under the clear mandate of Brannon v. Woodward, 175 S.C. 1, 178 S.E., 249, the allowance of commissions to the administratrix must be denied. It is therefore ordered that the credit of commissions shown in the amended return attached to the order of the Judge of Probate be disallowed.
With reference to the allowance of attorney's fee for Fred D. Townsend for services to the estate, I am of the opinion that the fee of $150.00 in connection with the house sale, while for the benefit of the estate, was an excessive allowance. I think $50.00 for these particular services were ample. It is therefore ordered that this credit be reduced from $150.00 to $50.00. In all other respects the credit allowance in this connection is approved.
The Judge of Probate found that the fund applicable to the payment of general creditors was the sum of $1,542.68 and that appellants were entitled to .686 of it. The disallowance of credits in this order amounts to $468.62, which, of course, swells this general fund by that amount. The amount appellant should have received from the estate was $1,379.75. They have received $1,186.66, which leaves a balance of $192.19 still due them.
The records of this estate were kept in a very careless and unbusinesslike manner. The administratrix withdrew estate money from the bank and sometimes before making deposits would deduct cash belonging to the estate. In each instance, however, a memorandum of the amount so deducted was made on the deposit slip, and the checks, of course, showed for themselves, and in the final accounting, all the deductions were charged against the administratrix. These withdrawals were probably for the support of self and children and were made at the time when the estate appeared to be solvent, but I heartily disapprove of such conduct. In this instance, but for the disallowance of administratrix' commissions, there would have been ample legal credits to have absorbed and properly accounted for all moneys coming into her hands, but such practices on the part of fiduciaries is most reprehensible and should be condemned. The matter of her account was gone into fully before me in argument of counsel, and I have carefully examined the vouchers, deposit slips, and checks, as well as the inventory and appraisement of said estate. I am satisfied that the entire estate is properly accounted for, except for the small deficit above named.
Appellants' principal contention was that their claim was for rent and thus entitled to preferred payment. I cannot agree with them in this. When their cause of action accrued against H.R. Townsend, they had two courses of action. They elected to sue for damages, and thus the status of their demand was fixed.
It is therefore ordered that upon the administratrix paying to appellants or their attorneys the sum of $193.19, she will have fully accounted for the estate and be entitled to her discharge.
Messrs. A.C. DePass and J.K. Owens, for appellants, cite: Action for rent: 160 S.C. 134; 36 C.J., 285; 1 Bail., 528; 7 Rich. L., 36 Res judicata: 121 S.C. 254; 4 Des., 65; 112 L.R.A. (N.S.), 298; 24 A.L.R., 1496.
Messrs. Fred D. Townsend and Stevenson Lindsay, for respondent, cite: Breach of contract to rent: 144 S.C. 251; 16 S.C. 634; 94 Va., 165; 26 S.E., 417; 35 C.J., 1193; 7 Rich., 33. Exceptions founded on fact: 6 S.C. 279; 20 S.C. 536; 21 S.C. 261; 21 S.C. 595; 54 S.C. 314.
January 25, 1937. The opinion of the Court was delivered by
In 1928, Mrs. Pauline Townsend, now Mrs. Odom, duly qualified as administratrix of the estate of her deceased husband, H.R. Townsend. In January, 1932, Mrs. Alma B. Burkhalter (for whom, after her death, John B. Burkhalter was substituted) and Mrs. Margaret B. Holladay, as judgment creditors of the estate, petitioned the Probate Court of Marlboro County for an order requiring the administratrix to account for her acts and doings as such, and to show cause why their judgment should not be paid. The order was issued as prayed for, and the administratrix made due return thereto and submitted herself for examination as required. Testimony was taken, and the probate Judge filed an order, dated August 11, 1934, in which he held against the principal contentions of the petitioners. This order was affirmed, except in certain particulars, by his Honor, Judge Johnson, and the matter is now before this Court for decision.
Counsel for appellants point out that three practical questions are presented by the appeal, and contend that Judge Johnson either erroneously decided them or did not consider them at all. The Judge, however, states in his decree that he gave full consideration to each of the exceptions before him, as well as to certain matters argued which he did not consider raised by them. We have read with much care the entire record and are of opinion that the conclusions reached by the Court below are correct.
As to the first question argued here, whether the judgment obtained for the breach of a rental contract is of the same status as a claim for rent, and thus entitled to preferential payment in the distribution of decedent's estate under Section 8995 of the Code of 1932, it is sufficient to say that the burden was on the claimants to show that their claim was for rent, and the record before us is silent as to such proof; and this Court will not go beyond the record, as we have often held, to determine the facts as to any matter in issue. As to causes of action arising in favor of the landlord where a tenant has abandoned the premises, see 16 R.C.L., 937.
As to the second point made, that the order of the Judge of Probate in the ex parte proceedings for the sale of stock of the Gaddy-Townsend Company was not res adjudicata as to the appellants, who were not parties thereto, we find no proof in the record which sustains the exception raising this question. Alleged facts stated only in the exception itself, as we have indicated, will not be considered.
The same may be said of the appellants' third contention, that the trial Judge was in error in not holding that the administratrix had failed to account for "two mules shown in the appraisal of the estate of the value of $200.00, and farm implements, of the value of $50.00." The evidence is not clear on this point; and, the appraisal and inventory not being printed in the record, this Court cannot determine the property properly chargeable to the administratrix. Judge Johnson, however, states in his order that he carefully examined such inventory and appraisement, and is satisfied that the assets of the estate, with the exception of a small deficit pointed out, are correctly accounted for.
The Circuit Judge properly condemns, in certain particulars named, the manner in which this estate was administered. Its management, as gathered from the testimony of the administratrix herself, is open to just criticism.
The order appealed from, which will be reported, is affirmed.
MESSRS. JUSTICES CARTER, BONHAM, BAKER and FISHBURNE concur.