Opinion
15735
May 14, 1945.
Before L.D. LIDE, J., Greenwood County, May, 1944. Affirmed.
Proceeding on the Petition of John Robert Tolbert opposed by Joseph W. Tolbert, for issuance of Letters of Administration to Petitioner in the matter of the Estate of Thomas P. Tolbert, deceased. From a Circuit Court Judgment affirming an Order of the Probate Judge appointing John Robert Tolbert as Administrator, Joseph W. Tolbert appeals.
The Circuit Order of Judge L.D. Lide, adopted as the Opinion of the Court, follows:
This matter came before me upon an appeal from an order of Hon. D.S. Jones, Judge of Probate, dated December 10, 1943, appointing John Robert Tolbert as administrator of the estate of Thomas P. Tolbert, deceased. The appeal was taken by Joseph W. Tolbert, who will sometimes hereinafter be referred to as the appellant; and John Robert Tolbert will sometimes hereinafter be referred to as the respondent. The appeal was argued before me at Greenwood on April 11, 1944, and taken under advisement.
A brief statement of the underlying and undisputed facts will clarify the issues to be determined by the court. Thomas P. Tolbert, the intestate, died on September 17, 1940, leaving as his only heirs-at-law his brother, Joseph W. Tolbert, the appellant herein, and the eight children of a deceased brother, R.R. Tolbert, Jr., one of these children being the respondent herein. For a number of years prior to Thomas P. Tolbert's death his brother, the appellant herein, lived with him (at appellant's home) and looked after his affairs, having complete charge thereof because of his ill health, and he continued to attend to these matters after the death of Thomas P. Tolbert. It appears that the personal estate of Thomas P. Tolbert is not large, but precisely what it now consists of is not shown by the record. He owned considerable real estate, subject, however, to certain mortgage indebtedness, which has been liquidated in part by the sale of saw timber and pulp wood from the lands covered thereby. These transactions were handled by the appellant, and it is admitted that in so far as the saw timber is concerned the children of R.R. Tolbert, Jr., deceased, consented to the sale thereof, but it is contended that they did not consent to the sale of the pulp wood.
It appears that at one time the appellant applied for letters of administration, his purpose being to collect for application on the mortgage indebtedness the insurance on certain buildings destroyed by fire, but upon being later informed that the insurance could be paid to the mortgagee without administration the petition was withdrawn, the reason assigned being that the personal property of the decedent "was small and was not in a position to be administered at that time." The date this petition was filed does not appear in the record before me. It does appear, however, that the respondent, John Robert Tolbert, one of the children of R. R. Tolbert, Jr., deceased, and hence a nephew of Thomas P. Tolbert, filed his petition on November 4, 1943, for letters of administration praying that such letters be issued to one M.M. Wells. Mr. Wells, however, has no interest in the estate and declined to consider acceptance of the appointment. Shortly after this petition was filed the summons and complaint in a suit instituted by Joseph W. Tolbert was served, to wit, on November 16, 1943. This suit appears to have been brought against the eight children of R.R. Tolbert, Jr., deceased, for partition and sale of the real estate of Thomas P. Tolbert, deceased, the determination of the debts of his estate and the payment thereof in that action, and the complaint therein contains, among other things, the following statement: "That the personal estate of the said T.P. Tolbert was of practically no value and all claims against the estate should be passed on and determined in this action."
Incidentally, it may be observed here that counsel for the respondent contends that the Probate Court having assumed jurisdiction prior to the institution of that action, its jurisdiction will not be ousted by the later proceeding in the Court of Common Pleas; but I do not think this question is involved in the appeal now before me, and hence I make no ruling thereabout.
The petition of the respondent, John Robert Tolbert, praying that letters of administration be issued was in due course heard before the Judge of Probate. Joseph W. Tolbert, the appellant herein, had moved that this petition be dismissed on the ground that he was entitled to the appointment under the express terms of the statutory law, but this motion was not granted, and Joseph W. Tolbert filed his petition with the Judge of Probate, verified December 1, 1943, praying that he be appointed the administrator, upon the grounds that he was entitled thereto under the statute and was best qualified to perform the duties thereof. After hearing and considering both petitions and such testimony as was offered the Judge of Probate concluded that letters of administration should be issued to John Robert Tolbert, and handed down his order to that effect dated December 10, 1943, as hereinbefore stated.
The grounds of appeal are three in number, the first of which is that Joseph W. Tolbert being the brother of Thomas P. Tolbert, deceased, was entitled to administer on his estate. The second is to the effect that no evidence was offered showing that Joseph W. Tolbert was in any way disqualified so to act; and the third is to the effect that the right of the appellant to the appointment under the statutory law of this State is an unqualified right, unless some good reason is shown to the contrary, and that none was shown in this case.
The legal principles governing a matter of this kind are, I think, well established, and may be readily stated. The only difficulty which can ordinarily arise really relates to the application of these principles to the facts and circumstances of a particular case. In the early days of the common law the Ordinary (as he was then called) might appoint as administrator whomsoever he pleased, but later there were statutes enacted providing for the appointment of some one of the heirs-at-law of the deceased in a certain order of priority. And the statute now in effect is that contained in Section 8968 (Codes 1932 and 1942), and under the terms thereof a brother has the priority over a nephew. This section says that the Judge of Probate "shall grant administration" in this order. In other words, the statute uses the mandatory word "shall". But, as was held in the leading case of Ex Parte Small, 69 S.C. 43, 48 S.E., 40, in which the opinion was delivered by Mr. Justice Woods, the Judge of Probate may deny administration to the person first entitled under the statute if upon the showing made before him he is satisfied that such person is not properly qualified for the position, and among other things the court calls attention to the fact that the granting of letters of administration is not automatic, because the law requires the issuance of a citation, to the end that the kindred or creditors of the intestate may show cause why the administration should not be granted to the person applying for it, notwithstanding such person may have the statutory priority. The opinion of Mr. Justice Woods in this case is so sound and well considered that it does not appear to have been overruled or modified by any subsequent decision of our Supreme Court; and I have carefully read and considered all the cases cited by counsel, as well as some others found in my own research.
Perhaps, however, the principal point made by the grounds of appeal is that the Judge of Probate erred in holding under the evidence before him that Joseph W. Tolbert was in any way disqualified to act as administrator. But it should be remembered that disqualification in this connection is not confined to the matter of character or intellectual competency, for no reflection is cast upon the appellant in this respect. One may, however, be disqualified to act as administrator for some good reason arising out of his relation to the business and affairs of the intestate. This principle was recognized in the case of Rowell v. Adams, 83 S.C. 124, 65 S.E., 207, where it was stated that a surviving partner of a decedent as a general rule could not be appointed administrator of the estate, nor ought one interested against the heirs or the estate be appointed. Other authorities to the same general effect may be found in 23 C.J., 1047 and 33 C.J.S., Executors and Administrators, § 46, p. 950. And in the Georgia case of Davis v. Davis, 33 Ga. App., 628, 127 S.E., 779, 780, the Court says: "the absence of legal fitness does not necessarily imply a lack of morality or good sense."
Even if the appellant may not be deemed to have been a partner of his deceased brother, yet it is admitted that he had been in charge of his brother's business and continued to exercise charge and control thereof after his death, and furthermore, the testimony of the respondent tends to show that the deceased was at one time possessed of certain personal property, for which the appellant might be required to account.
Upon mature reflection it is my judgment that the evidence amply sustains and justifies the conclusion reached by the Judge of Probate, as expressed in his well-prepared order; bearing in mind that the presumption was in favor of the appellant, to whom the statute gave the privilege. Ex Parte Small, supra. Without in any way passing upon the merits of any such controversy as may hereafter arise, it is apparent that the appellant will be called on to make an accounting for his acts and doings with reference to the estate of his deceased brother, and this conflict of interests is a sound reason why he should be held disqualified to act as administrator.
Section 228, Codes 1932 and 1942, provides that the Circuit Court shall have appellate jurisdiction in a matter of this kind, and hence may review all the findings of law and of fact of the Probate Court. But the consideration to be given to the findings of fact in the court below are well stated in the order of the Circuit Judge, approved by the Supreme Court, in the case of Sartor v. Fidelity Deposit Co., 160 S.C. 390, 158 S.E., 819.
I am, therefore, of opinion that the grounds of appeal should be overruled and the order of the Judge of Probate affirmed. And it is so ordered.
Mr. W.H. Nicholson and Mr. S.H. McGhee, both of Greenwood, S.C. Counsel for Appellant, cite: As to Policy of the Law in Appointment of Administrators: 2 Strobhart, 287, at p. 335; 2 Hill, 347; 3 Brevard, 520; 17 S.C. 32; 62 S.C. 426, 40 S.E., 891; 28 S.C. 281, 5 S.E., 718; 83 S.C. 124, 65 S.E., 207; 131 F., 175-177; 96 S.C. 34, 79 S.E., 791; 89 Am. Dec., 574; 21 A.J., 406, and cases cited; 23 C.J., 1046-47; 33 C.J.S., 950; 85 S.W., 1105; 21 A.J., 406 et seq.; 33 C.J.S., 828-829; 33 C.J.S., 924 and notes; 74 A.S.R., 21, and cases cited; (Ga.), 15 S.E.2d, p. 549; (Ga.) 15 S.E.2d 899; 108 S.E., 304; 105 A.S.R., 132.
Messrs. Mayes Featherstone of Greenwood, S.C. Counsel for Respondent, cite: As to Right to Administer: 63 S.C. 43; 83 S.C. 124, 65 S.E., 207. As to Discretion of Probate Judge in Appointment of Administrators: 23 C.J., 1064.
May 14, 1945.
The court is satisfied from a careful study of the questions presented by this appeal that the circuit decree of Judge Lide correctly disposes of all issues involved in the case. We are in accord with the reasoning and conclusions of the Circuit Court, and adopt its decree as the opinion of this Court. Let it be reported.
Judgment affirmed.
MR. CHIEF JUSTICE BAKER and MESSRS. ASSOCIATE JUSTICES FISHBURNE, STUKES, TAYLOR and OXNER, concur.