¶1
The opinion of the Court was delivered by
Mr. Justice Fisitburne.
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This is an appeal from an order 'of Hon. G. Dewey Oxner, Circuit Judge, wherein he held that the issues made by
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the pleadings were equitable and should be passed upon, by a referee. He, accordingly, referred the three causes to a special referee, with instructions to take the testimony and report his findings of fact and conclusions of law to the Court.
¶3
The appellants assign error upon several exceptions, which make the sole issue whether the Circuit Judge erred in granting the order of reference. The appellants contend that the actions are properly triable before a jury on the law side of the Court, and seek reversal.
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A careful study of the record, and a review of the authorities bearing upon the issues, convince us of the correctness of the conclusions reached by the Circuit Court. We approve the order, which will be reported, and adopt it as the opinion of this Court.
¶5
The exceptions are overruled, and the judgment of the Circuit Court is affirmed.
Mr. Chief Justice Stabler and Messrs. Justices Bonham and Baker concur.
Mr. ChiEE Justice Carter dissents.
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Case posture Posture Before OXNER, J., Lancaster, July, 1936. Affirmed.Separate actions by Bartlett Jons Witherspoon by Mary Dunnom Witherspoon, his guardian ad litem , by Marion Sims Witherspoon, and by Mary Dunnom Witherspoon against John F. Stogner, administrator of the estate of Mrs. L.K. Witherspoon, deceased, John T. Stevens and W.G. Stevens. From an order referring the cases to a Special Referee, defendants John T. Stevens and W.G. Stevens appeal.
The order of Judge Oxner follows:
The three above-entitled causes came on to be heard before me upon motions, duly noticed by attorneys for plaintiffs, for an order of reference in each. Said motions were resisted by the attorneys for the defendants John T. Stevens and W.G. Stevens. Each of the named plaintiffs is an heir at law and distributee of the estate of his or her father, Marion S. Witherspoon, who died intestate in Lancaster County, S.C. in 1916. On October 25, 1916, Mrs. L.K. Witherspoon was duly appointed administratrix of said intestate estate, with John T. Stevens and W.G. Stevens as sureties upon her administration bond. These actions were commenced November 27, 1935, and as originally brought, each was against Mrs. L.K. Witherspoon, John T. Stevens, and W.G. Stevens, as parties defendant. Thereafter, to wit, January 3, 1936, Mrs. L.K. Witherspoon died intestate and in default; she having therefore failed to plead or appear in any manner.
After the death of Mrs. L.K. Witherspoon, John F. Stogner was, on the 15th day of February, 1936, duly appointed the administrator of her estate, and thereafter, on March 24, 1936, upon motion of plaintiff's attorneys, duly consented to, I passed an order substituting said John P. Stogner as administrator as a party defendant in lieu of his intestate, the said Mrs. L.K. Witherspoon.
While there are three separate and distinct causes, the respective complaints, answers, and motions are practically identical, so that the issues and questions presented in each of said causes for any decision are identical, making necessary only one decision and this one order, which is applicable to and decisive of each said motion.
The motions were originally noticed to be heard before me at Chester, but, by agreement of counsel, were marked heard and thereafter fully presented and ably argued before me at York, on April 13, 1936. I took the matter under advisement, and permitted counsel for the respective parties
to file written briefs supplementing the oral arguments and authorities cited at the hearing.
Careful consideration of the pleadings herein as a whole has convinced me that each of these actions is in equity and seeks in behalf of each plaintiff as an heir at law and beneficiary of the estate of Marion S. Witherspoon, deceased, an accounting from the administratrix of said estate of her acts and doings with respect to the assets thereof; and that the defendants John T. Stevens and W.G. Stevens are made parties thereto by reason of their being sureties on her administration bond.
Each complaint clearly and distinctly alleges the existence of the trust relationship, the necessity for an accounting, seeks and demands such accounting and judgment for such sum of money as is by said accounting shown to be justly due and owing to plaintiff.
That a fiduciary relationship exists between each heir or beneficiary of an estate and the administratrix thereof is fundamental. It is also fundamental that each such cestui que trust has the right to demand by a suit in equity an accounting at the hands of such trustee, as has been done in these actions, and that thereupon it becomes the duty of such defendant trustee to render a full, fair, and impartial accounting with respect to all matters pertaining to said estate.
Proper consideration of the pleadings in any cause requires that they be considered as a whole. Mortgage Loan v. Townsend , 156 S.C. 203 , 152 S.E., 878 ; Nix v. Harley , 3 Rich. Eq. (24 S.C. Eq.), 379.
Furthermore, since the case of Taylor v. Taylor , 2 Rich. Eq. (19 S.C. Eq.), 123, which specifically overrules the old and contrary doctrine announced in Teague v. Dendy , 2 McCord, Eq. (7 S.C. Eq.), 209, 16 Am. Dec., 643, and other cases decided prior thereto, the Courts of this State have recognized that in a suit for an accounting against an administrator, the sureties are proper
parties thereto. See, also, Burnside v. Robertson , 28 S.C. 583 , 6 S.E., 843 , and Kennedy v. Adickes , 37 S.C. 174 , 15 S.E., 922 , in which last case Mr. Justice McGowan, speaking for the Court, said: * * * the modern practice is to implead the surety in the original action for account, which would seem to be the better practice; for the double reason that thus the whole matter is accomplished by one action instead of two, and the surety, who is certainly interested in the result, may be heard upon the subject of the accounting in the first instance.
In the light of these well-recognized principles, I am convinced that each of the plaintiffs herein has, as a cestui que
trust, properly brought a suit in equity against the trustee for an accounting and has properly impleaded the sureties on the administration bond.
Nor do I consider the cases of Beatty v. National Surety , 132 S.C. 45 , 128 S.E., 40 , and Anderson v. Aetna Casualty Surety Co. , 175 S.C. 254 , 178 S.E., 819 , cited me by defendants, in point in the cases at bar. The Beatty case is clearly an action at law against the surety alone, for a definite sum of money, which had theretofore been fixed and determined.
In Anderson v. Aetna Casualty Surety Co., supra , the plaintiff elected to bring an action at law for a sum certain, predicting the right to recover upon the alleged negligence of the defendant. There was neither allegation nor demand for an accounting, practically the sole question presented being whether or not the defendant had been negligent in the making and keeping of a deposit of a sum certain in a named bank. No accounting was necessary, the sum involved being definite in the amount and the sole issue one of negligence.
The cases before me proceed upon an entirely different theory. Plaintiffs have elected, as each had a right to do, to maintain an action in equity, alleging the existence of a trust relationship, the necessity for an accounting, and a demand
therefor, which the law recognizes each plaintiff entitled to, by reason of said trust relationship. To me, there appears no issue that cannot be fully and fairly determined by a Court of Equity. In my opinion, all three of these cases are, by reason of the nature of each, governed by the cases of Farley v. Matthews , 168 S.C. 296 , 167 S.E., 502 , and Anderson County v. Griffin et al. , 164 S.C. 75 , 161 S.E., 875 ; Southern Home Ins. Co. v. Hardin , 146 S.C. 175 , 143 S.E., 544 ; Devereux v. McCrady , 46 S.C. 133 , 24 S.E., 77 ; and preceding decisions therein cited by the Court.
From a study of the pleadings herein, it is clearly apparent that the accounting will necessarily be not only long and complicated, but from the very nature of the estate, as shown by the allegations describing it, and from the fact that the trust relationship continued over a period of more than thirteen years, involving the rights of cestui que trust, who were minors during said period, I am convinced that said accounting would be so intricate and complex that it would be impractical, if not impossible, for an ordinary jury to comprehend and decide the issues correctly. But even if, as attorneys for the two Stevens defendants contend, these causes would be construed as raising issues of law, which I do not concede, it nevertheless appears clear that each cause presents a feature of equitable cognizance, since the proper disposition of each will require the taking of an account so complicated, intricate, involved, and extended in its nature, that an ordinary jury could not intelligently make a proper finding. I am therefore clearly of the opinion that these causes are governed by the provisions of Section 653 of the Code of 1932, and that in the exercise of my discretion, these causes should be referred.
At the hearing before me, it was agreed by counsel for all parties, without prejudice to their respective positions, that Hon. John M. Wise, of Chester, S.C. should be appointed special referee in each of said causes in the event that I determined that said causes should be referred.
Now, therefore, it is ordered that each and all of the above-entitled causes be and the same hereby are referred to Hon. John M. Wise, attorney at law, of Chester, S.C. hereby appointed special referee therein to take the testimony and report to this Court with all convenient speed, his findings of fact and conclusions of law, with leave to report any special matter, and with the usual powers as such. Source: CourtListener
