¶1 Respondents-appellants have filed a petition asking that they be granted a rehearing in the above-stated case. Their petition is based on two grounds, viz.: That the action was brought against them as devisees under the will of Dr. L. F. Johnson, to require them to account for property received under the will, but that the Circuit decree, affirmed by this Court, gives a general judgment against them individually for the full amount found to be due plaintiff by the estate of Dr. Johnson.
¶2 The complaint asks only that the defendants account for the acts and doings of the testator, which we construe to mean that they account out of the property devised to them by Dr. Johnson, and not from their individual properties.
¶3 While the decree of Judge Dennis gives judgment against the defendants apparently in their individual capacity, it must be construed in the light of the allegations and prayer of the complaint to mean, and we so hold, that the judgment is to be satisfied out of the property they take as devisees under the will of Dr. Johnson.
¶4 The second ground of the petition is that this Court overlooked, or misapprehended, the admitted facts in relation to the item of $3,000.00, for which Dr. Johnson sold the lot conveyed to him by Anjaline Jackson.
¶5 We are satisfied with the disposition of this item made by Judge Dennis.
¶6 The petition is refused.
¶7 MR. JUSTICE CARTER did not participate on account of illness. *167
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Case posture Posture Before DENNIS, J., Dillon, January, 1937. Affirmed.Suit to set aside a will and for an accounting by Anjaline Jackson, by her committee, S.W. Jackson, against Mrs. Lena E. Johnson, as executrix of the last will and testament of L.F. Johnson, and in her own right, and others. From the decree, all parties appeal.
Decree of Judge Dennis follows:
The above-entitled cause was begun on or about the 27th day of February, 1936. The complaint sets forth four causes
of action, and enumerates numerous transactions taking place between L.F. Johnson, the testator of the defendants, and Lucinda and Anjaline Jackson. It alleges the due appointment of a committee for Anjaline Jackson, and prays an accounting on the part of the estate of L.F. Johnson, by his executrix, and his heirs at law, and in the fourth cause of action that the will therein mentioned be declared null and void.
The defendants duly answered, denying the material allegations of the complaint; setting up the statute of limitations, and laches, and further, that the deeds made were in good faith, and for valuable consideration, and that any sums of money that the said L.F. Johnson received were intended as a gift, in consideration of the said L.F. Johnson taking care of the plaintiff and in pursuance of the will, which was likewise alleged to have been made in good faith, and while the plaintiff was of sufficient mental capacity to make it.
The cause was referred to the Master for Dillon County to take the testimony, which was done, and the matter came on to be heard before me at my chambers at Darlington on Wednesday, the 30th day of December, 1936.
After hearing arguments, and after due consideration of the testimony, I find the following facts: That in 1912, Dr. L.F. Johnson was called to the home of Owen Jackson to render medical service, the said Owen Jackson then living at his home with his sister, Lucinda Jackson, and her daughter, Anjaline Jackson. Owen Jackson died within a period of from sixty to ninety days thereafter, making as one of the devisees under his will in consideration for medical services, Dr. L.F. Johnson. From the time of his death in 1912 to 1918, when Lucinda Jackson died, he took numerous deeds for lands from Lucinda Jackson; they purporting to be for a consideration of support and medical attention. On Lucinda's death in 1918, Anjaline Jackson, who was the only heir of Lucinda Jackson, made a will, giving to the said L.F. Johnson all of
her property. Defendants contend that it was her intention to contract with Dr. Johnson for her care, maintenance, and support during her lifetime in consideration of which he was to have her property at her death, and because of this situation they attempt to justify his acts and doings in connection therewith. Even if this were the original purpose, it was repudiated by Dr. Johnson. In December, 1919, he had Anjaline Jackson execute to him a deed, conveying perhaps the choice lot of her land, for a consideration of $200.00, and on May 17, 1920, he conveyed the same property to L. Cottingham for a consideration of $3,000.00. He kept a book showing his advances to her, but he did not credit the $200.00 thereon until after he had made the sale to Cottingham. On the same date, May 17, 1920, he had Anjaline Jackson execute a deed to Cottingham for about five acres of her land adjoining the lot conveyed to him in the previous December for a consideration of $7,000.00. He received the check, got the money, and nowhere credited her for it. His account book, commencing with 1918, shows numerous visits at $2.00 each, and a meager amount for supplies. Still not satisfied, in 1931, he took another deed from her, for an alleged consideration of $150.00, and in 1932, another deed for a consideration of $300.00. One of these deeds he credits; the other he does not.
In this same account book he has a statement in his own handwriting, from which it appears that certain parties were attempting to raise questions as to his treatment of Miss Jackson, and he states that he will furnish her supplies and medical attention as long as he is able and as long as Miss Jackson has money to pay him therefor. This statement and the taking of the deeds clearly show that if, in the beginning, there was an agreement as to the will, Dr. Johnson has long since repudiated it. The testimony convinces me that beginning in 1912 he had formed a scheme to get all of the property of these two old women, who were extremely ignorant, neither of whom could read or write, and who had
no conception of the transaction of business, and that he used the confidential relationship existing between him and them for the purpose of carrying out his schemes. I am convinced that certainly as to the $7,000.00, which he took, used, and did not credit, that it was his intention to confiscate same and that as to it, he is a trustee ex maleficio . I further conclude from the testimony that his purpose in keeping the ledger account was that in case any question was raised as to the conveyances made to him, to use the same as an offset or claim that he had paid valuable consideration therefor.
As a matter of law, I hold that the committee of Anjaline Jackson is not in a position to question the transaction between Dr. Johnson and Owen Jackson and Lucinda Jackson. As to these, on their death, administrators should have been appointed or in case there was an executor, the executor or administrator should have raised these questions.
As to Anjaline Jackson, I hold as a matter of law that the statute of limitations, Code, 1932, § 392, does not apply: First, because there was a mutual current account running between the parties, and the last entry is well within the six-year period; and secondly, for the reason that Dr. Johnson was in a position of trust which had not been openly repudiated, and Anjaline Jackson, being ignorant, and relying entirely on him and his judgment and good faith, no condition arose nor did any facts exist that would cause the statute to begin to operate.
For the same reason, I hold that there was no laches on her part; it being well settled that mere lapse of time does not amount to laches, but that in each case the surrounding facts and circumstances, and especially opportunity on the part of the person against whom laches is claimed, and knowledge and capacity to appreciate the opportunity and the necessity for taking action must be considered.
However, in the accounting, I am going to be as lenient as I can under the law. Under the testimony, there is room
for holding that the considerations paid for the two last deeds was equitable, and I am going to require him to account for the considerations mentioned therein. As to the $3,000.00 and the $7,000.00, he must account for these sums, with interest on them and on the considerations mentioned in the deeds at the legal rate, figured according to the rules for simple interest. He is likewise entitled to credit for his advances for each year and interest thereon, figuring the same way. Upon this being done, a balance should be struck, and his estate should account to the plaintiff for the balance. I state the account as follows:
CHARGES AGAINST THE DEFENDANTS.
1920
May 17
Received purchase price lot .................. $ 3,000.00
7% simple interest May 17, 1920,
July 1, 1934, 14-1-14 ..................... 2,965.67
6% simple interest July 1, 1934, to
Dec. 31, 1936, 2-6 ........................ 450.00
Received purchase price warehouse
lot ....................................... 7,000.00
7% simple interest May 17, 1920 to
July 1, 1934, 14-1-14 ..................... 6,919.89
6% simple interest July 1st, 1934, to
December 31, 1936, 2-6 .................... 1,050.00
1931
Dec. 22
Conveyance of lot ............................ 150.00
7% simple interest December 22,
1931, to July 1, 1934, 2-6-9 .............. 26.52
6% simple interest July 1, 1934, to
December 31, 1936, 2-6 .................... 22.50
1932
Aug. 23
Conveyance of lot ............................ 300.00
7% simple interest Aug. 23, 1932, to
July 1, 1934 .............................. 38.97
6% simple interest July 1, 1934, to
December 31, 1936, 2-6 .................... 45.00
_________
Total Debits ................................. $ 21,968.55
CREDITS TO DEFENDANTS
1918
December 31, advances for 1918 ............... $ 285.48
7% interest December 31, 1918, to
July 1, 1934, 15-6 ........................ 309.75
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 42.82
1919
December 31, advances for 1919 ............... 696.89
7% simple interest December 31,
1919, to July 1, 1934, 14-6 ............... 707.34
6% interest July 1, 1934, to December
31, 1936 .................................. 104.53
1920
December 31, advances for 1920 ............... 582.50
7% interest December 31, 1920, to
July 1, 1934, 13-6 ........................ 550.53
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 87.37
1921
December 31, advances for 1921 ............... 399.55
7% interest December 31, 1921, to
July 1, 1934, 11-6 ........................ 349.62
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 59.92
1922
December 31, advances for 1922 ............... 508.26
7% interest December 31, 1922, to
July 1, 1934, 11-6 ........................ 409.17
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 76.25
1923
December 31, advances for 1923 ............... 424.28
7% simple interest December 31,
1923, to July 1, 1934, 10-6 ............... 311.85
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 63.65
1924
December 31, advances for 1924 ............... 447.63
7% interest December 31, 1924, to
July 1, 1934, 9-6 ......................... 297.66
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 67.15
1925
December 31, advances for 1925 ............... 397.05
7% simple interest December 31,
1925, to July 1, 1934, 8-6 ................ 236.30
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 59.55
1926
December 31, advances for 1926 ............... 343.39
7% interest December 31, 1926, to
July 1, 1934, 7-6 ......................... 180.30
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 51.50
1927
December 31, advances for 1927 ............... 471.54
7% interest December 31, 1927, to
July 1, 1934, 6-6 ......................... 214.56
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 70.73
1928
December 31, advances for 1928 ............... 474.98
7% interest December 31, 1928, to
July 1, 1934, 5-6 ......................... 182.87
6% simple interest July 1, 1934, to
December 31, 1936, 2-6 .................... 71.25
1929
December 31, advances for 1929 ............... 393.30
7% simple interest December 31,
1929, to July 1, 1934, 4-6 ................ 123.88
6% simple interest July 1, 1934, to
December 31, 1936, 2-6 .................... 59.00
1930
December 31, advances for 1930 ............... 351.83
7% simple interest December 31,
1930, to July 1, 1934, 3-6 ................ 86.20
6% simple interest July 1, 1934, to
December 31, 1936, 2-6 .................... 52.77
1931
December 31, advances for 1931 ............... 413.81
7% interest December 31, 1931, to
July 1, 1934, 2-6 ......................... 72.12
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 62.07
1932
December 31, advances for 1932 ............... 439.12
7% interest December 31, 1932, to
July 1, 1934, 1-6 ......................... 46.01
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 65.87
1933
December 31, advances for 1933 ............... 283.19
7% interest December 31, 1933, to
July 1, 1934 .............................. 9.91
6% interest July 1, 1934, to December
31, 1936, 2-6 ............................. 32.47
1934
December 31, advances for 1934 ............... 255.09
6% interest December 31, 1934, to
December 31, 1936, 2 years ................ 30.62
1935
December 31, advances for 1935 by
Dr. Johnson ....... ....................... 40.45
6% interest one year ......................... 2.43
Advance by Mrs. Johnson 1935 ................. 102.09
6% interest one year ......................... 6.12
__________
Total credits and interest ................... $ 12,464.85
Balance due plaintiff ........................ 9,503.70
It follows from what has been said above that the will that was executed in favor of Dr. Johnson is of no force and effect, and it is hereby declared to be null and void.
It is therefore ordered, adjudged, and decreed that the plaintiff have judgment against the defendants for the sum of $9,503.70; that the will be declared null and void and is hereby set aside. Source: CourtListener
