Willis v. Tozer

¶1The opinion of the court was delivered by

¶2On the 10th of January, 1887, Francis Arnold instituted an action in the Court of Common Pleas for Richland County, against the defendant, as administratrix of the estate of Richard Tozer, to foreclose a mortgage on certain real estate in the city of Columbia. The defendant pleaded jplene administravit, complying with Rule 21 of the Circuit Court by filing a sworn cppy of her inventory and appraisement, and by giving a statement of her administration as follows: “That no goods or chattels, rights or credits, which were of the said Richard Tozer at the time of his death have come into her hands as administratrix to be by her administered except certain personal property, that is to say: … which said property now in the possession of this defendant was duly appraised, according to law, at the sum of $195, and that she has paid out the sum of $209.09 on account of the expenses of the last illness and of the funeral of her said intestate, and for fees of administration. And this defendant files herewith a copy of the inventory and appraisement of the estate of her said intestate. Wherefore, this defendant prays that whatever judgment be given against her in the premises may be made subject to this, her defence, that she has fully administered all the goods and chattels, rights and credits, of her intestate, which have come into her hands as administratrix to be administered by her.”

¶3That action resulted on the 8th of May, 1888, in a judgment in favor of the plaintiff, Francis Arnold, against the defendant as administratrix for $633.08. The decree in that case provided: “That if the proceeds of the sale be insufficient to pay the amount adjudged to be due to the plaintiff, with interest and costs, as aforesaid, the master shall specify the amount of such deficiency, and that the defendant, Mary A. Tozer, as administratrix as aforesaid, do pay the same to the plaintiff, the said Francis Arnold, with interest from the date of such report, out of any assets that may come into her hands to be administered, *11other than such as are specified in her answer herein, and that said plaintiff have execution therefor.” The land was sold, and the master reported a deficiency of ‡688.08. A judgment was thereupon entered by said Francis Arnold in conformity to said decree against the said administratrix. She subsequently received $666.55, whereupon execution was issued upon the aforesaid judgment, which had in the meantime been assigned to the plaintiff in the present action, but the defendant refusing to apply money to the execution, a nulla bona return was made thereon, and this action commenced on the 4th day of September, 1892.

¶4The defendant, in her answer, admitted the receipt of the assets, but pleaded: “That at divers tinges during her administration of the said estate, without knowledge and notice of the indebtedness to the said Francis Arnold, as set forth in the complaint herein, and prior to the commencement of the action upon the bond and mortgage of the said Francis Arnold, the defendant, in anticipation of receiving the said legacy, advanced and paid out of her own moneys, certain debts of the estate of the said Eiehard Tozer, and certain expenses of administration, including fees for professional services of her attorneys in and about her defence to the action pending against her as said administratrix, as hereinafter set forth, for which she asks to be reimbursed out of the assets hereinbefore acknowledged to have been received by her, which said debts and expenses of administration amount in the aggregate to the sum of $1,667.70; and this defendant further avers that at the time of the issuing of the execution set out in the sixth paragraph of the complaint, she did not have, and has not now, in her hands to be administered any assets of the estate of her said intestate.” The defendant in her answer also alleges, that over and above the amount for which the plaintiff herein demandsj udgment against the defendant, there are due and outstanding against the estate of the defendant’s intestate of equal rank with the judgment held by the plaintiff claims in various sums, amounting in the aggregate to the sum of $220.

¶5The cause came on to be tried upon the pleadings at the summer term, 1893, of the Court of Common Pleas for Eichland *12County, his honor, Judge Ernest Gary, presiding. Upon the reading of the complaint, the defendant interposed a motion to dismiss the complaint by way of oral demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action: 1. Because it contained no allegation that a judgment had been obtained by the plaintiff against the defendant in her representative capacity in a prior action, wherein the said defendant by plea, confession or default, admitted assets, or the said defendant had been found to have assets by the verdict of a jury on and against the plea of plene administravit generally or praeter. 2. If it should be held that the action would lie on a judgment quando acciderint, then, because the complaint contained no allegation of fact to the effect that the funds alleged to have been received by the defendant as administratrix were applicable to the payment of such judgment, and that the said defendant had wasted and misappropriated the said assets; and S. Because, while it appeared in the caption of the complaint that the plaintiff was suing in her representative capacity as executrix, there were no allegations of fact in the body of the complaint showing her right so to sue.

¶6On this motion, his honor, Judge Gary, reciting the points as above set forth, made and entered the following order: “I am of the opinion, that the first and third grounds are not well taken, but that the demurrer ought to be sustained on the second ground. It is, therefore, ordered that the demurrer be sustained on the ground specified, but that the plaintiff have leave to amend her complaint, and that the defendant have twenty days in which to answer the amended complaint to be served upon her.”

¶71 To this order, the defendant duly filed the following exceptions: 1. “For that his honor erred in not sustaining the motion by way of oral demurrer, interposed by the defendant, on the ground that the action of debt on a judgment, suggesting a devastavit against an administrator individually, will not lie in a case where, in the former action, there has been no admission or confession of assets found by the verdict of a jury, on and against the plea of plene administravit generally, or praeter, and in holding that the said *13ground was not well taken.” The appellant contends (to use the language of her attorneys) that “it is well settled in this State that an action of debt on a judgment suggesting devastavit will not lie on a judgment quando acciderint, but only where a judgment has been obtained against an administrator in his representative capacity, in which he admits assets by plea, confession or default, or found by the verdict of a jury on and against the plea of plene administravit generally, or praeter."

¶8To support this position the appellant’s attorneys rely upon the case of Brown v. Hillegas, 2 Hill, *447, in which Judge O’Neall, delivering the opinion of the court, says: “In Jones v. Anderson, 4 McCord, 118, Judge Colcock, who delivered the opinion, cites, with approbation, the remarks of the Court of Appeals of Virginia, which said that ‘a suggestion of a devastavit may be likened .to a criminal proscution, and an executor shall not be presumed guilty of a devastavit until it is found against him by a verdict.’ I concur fully in this dictum. An executor or administrator is not to be made liable de bonis propriis until his devastavit is legally and firmly established. In this State this can only be done by establishing first his testator’s debt by matter of record (i. e., a judgment recovered de bonis testatoris against the executor or administrator); second, assets admitted by the defendant’s plea, confession or default, or found by the verdict of a jury on and against the plea of plene administravit generally, or praeter; and third, that the defendant has wasted such assets. These are facts which, although they may be proved by matter of record, must be found against the defendant by the verdict of a jury, before judgment and execution can go against him de bonis propriis." They also rely upon the case of Ford v. Adm’r of Rouse, Rice, 219, in which the court, after quoting the doctrine laid down in Brown v. Hillegas, says: “Under these rules it is plain to be seen that the defendant is not in any danger of a personal liability in an action of debt suggesting devastavit,” Also upon the case of Spoon v. Smith, 36 S. C., 588, in which Mr. Justice Pope, as the organ of the court, says: “It is, no doubt, true, as a general proposition, that the plea of plene administravit, set up by a personal representative of a deceased debtor, in a suit by a creditor of such *14deceased debtor, when accepted as true, or established to be true, in such a suit, restricts such suing creditor to a judgment quando acciderint, thereby releasing the personal representative from all liability for assets of the deceased debtor that came into the personal representative’s hands up to the date of the judgment, thereby rendering such personal representative liable for such assets of the deceased debtor as should, or may, come into his hands after such judgment. Rosborough v. Mills, as adm’r, 35 S. C., 578.”

¶9An examination of the cases of Brown v. Hillegas and Ford v. Rouse, supra, will show that the principles therein stated have no application to a case like this; in fact, there is not a single circumstance in either of those cases calling forth the doctrine applicable to the present case. The case of Spoon v. Smith, instead of sustaining appellant’s position, is authority against it, because it shows that although the personal representative is not liable under a judgment quando acciderint for assets that came into his hands up to the date of the judgment, he is “liable for such assets of the deceased debtor as should, or may, come into his hands after such judgment.”

¶10The practice followed by the plaintiff herein was adopted in the cases of McDowall v. Branham, 2 Nott & McC., 572, and Summers v. Tidmore, 1 McCord, 270, and no objection was made to the proceedings on the ground mentioned herein, although they were dismissed on other grounds. It is also sustained by Williams on Executors, vol. 2, page *1705, where the author says: “If a judgment of assets quando acciderint has been entered against an executor or administrator, the plaintiff cannot have execution until some assets come into the hands of the defendant, when the plaintiff may bring an action of debt upon the judgment, &c.” A conclusive answer to the position of the appellant, it seems to us, is, that when the personal representative is sued in an action of debt upon the judgment quando acciderint suggesting a devastavit, the defendant can then have the issue of fact, as to a devastavit, tried by a jury; and not until this is found against him and judgment entered, is he liable de bonis propriis. Any other course than that pursued *15by the plaintiff herein, would cause a multiplicity of suits, which the Code abhors. This exception is overruled.

¶112 2. “For that his honor erred in not sustaining the demurrer made, upon the ground that, while it appears in the caption of the complaint that the plaintiff is suing in her representative capacity as executrix, there are no allegations of fact in the body of the complaint to show her right so to sue, and in holding that the said ground was not well taken.” This exception cannot be sustained, because the words “as executrix” in the caption of the complaint were merely surplusage, immaterial, and can be struck out by amendment at any time. Carroll v. Tompkins, 14 S. C., 223. See, also, Mickle v. Cong. Cons. Co., 41 S. C., 394.

¶123 3. ‘ ‘For that his honor erred in not sustaining the demurrer on one or both of the said grounds, and in granting the plaintiff leave to amend her complaint; whereas his honor should have sustained the demurrer on one or both of the said grounds, and dismissed the complaint.” The amendment was in accordance with the liberal spirit of the Code, and was properly allowed. This exception is, therefore, overruled.

¶13In pursuance of the order of Judge Gary, the plaintiff amended her complaint, by inserting at the end of paragraph 8 of the original complaint the additional words: “which said sum is applicable to the payment of the judgment above alleged, all of which amount the defendant has failed and refused to apply to said judgment, but has wasted and misappropriated.” The cause came on to be tried on the amended pleadings, at the spring term, 1894, of the said court, his honor, Judge Fraser, presiding. Upon the reading of the amended complaint, the defendant interposed a motion to dismiss the complaint, on the ground that the order of Judge Gary had not been complied with, the amendment inserted by the plaintiff being conclusions of law; and that there were in the complaint, as amended, no allegations of fact to the effect that the assets alleged to have been received by the defendant as administratrix, were applicable to the payment of the judgment forming the basis of the plaintiff’s action, and no allegations *16of fact to the effect that the defendant had wasted and misappropriated the said assets, as required by the said order, and the defendant also interposed a motion by way of oral demurrer to the said amended complaint, on the ground that the said amended complaint, for the reason stated, did not state facts sufficient to constitute a cause of action. His honor, Judge Fraser, reserving his opinion at the time, entered an order of continuance, and thereafter filed the order which will be incorporated in the report of the case.

¶144 The first exception to the order of Judge Fraser is as follows: “For that his honor, Judge Fraser, erred in refusing to grant the motion of the defendant to dismiss the complaint, made on the ground that the order of Judge Gary directing the said complaint to be amended, had not been complied with.” It cannot be sustained, because it does not appear that Judge Fraser made any ruling upon the question raised by this exception. In the case of Chamblee v. Tribble, 23 S. C., 75, Chief Justice Simpson, in speaking for the court, says: “Inasmuch as the Circuit Judge made no ruling upon the first question, i. e., the constitutionality of the act chartering the company, we do not regard that question ‘as before us,’ as we can only review such questions of law as may be adjudged and determined below. In the absence of any ruling by the Circuit Judge, no question can arise in this court.” This case is not like that of Aultman v. Utsey, 41 S. C., 305, where the exception was based on the ground that the Circuit Judge had failed to decide one of the defences set up in the answer. In the case before us the exception complains of error on the part of the presiding judge, “in refusing to grant the motion to dismiss the complaint,” &c., but not because h& failed to decide such motion. This exception is overruled.

¶155 The second exception to the order of Judge Fraser is as follows: 2. “For that his honor, Judge Fraser, erred in holding that the judgment guando in the former action was prima faeie an adjudication that there are, or were at the rendition thereof, no debts or other obligations of which the administratrix had notice which would take precedence of the plaintiff’s debt in administration of future assets, and that on *17the coming into the possession of such assets, they are prima facie applicable to plaintiff’s judgment, and remain so until the contrary is pleaded and shown.” Section 2046 of the Eevised Statutes requires that an executor or administrator shall advertise for creditors of the estate to present their demands duly attested, and allows the executor or administrator twelve months to ascertain the debts due from the deceased. When this defendant filed her plea of plene administravit, more than the twelve months had elapsed which were allowed for ascertaining the debts due from the deceased, and she is presumed to have ascertained this indebtedness. The defendant filed her plea of plene administravit, and, as required by law, set forth a full and particular account of her administration of the estate under oath, with a certified copy of the inventory and appraisment. A part of that administration, was the duty enjoined of ascertaining the indebtedness of the estate, a statement of which is properly a part of the plea of plene administravit. A plea of plene administravit without this full and particular account of the administration under oath is improper, and may be stricken out on motion. Ford v. Rouse, supra. The reason for this requirement of the law' is thus stated in Ford v. Rouse: “For, if that plea had been accompanied by defendant’s accounts, the plaintiff might have replied the payment of debts out of their legal order, and averred that his debt was entitled to priority of payment.”

¶16A judgment is conclusive between the parties to it not only as to those matters which were actually decided, but also all such as were necessarily involved in its rendition. Trimmier v. Thomson, 19 S. C., 254; Micheau ads. Caldwell, 1 Speer, 276. The question as to the indebtedness of the deceased had necessarily to be decided by the court in rendering judgment guando aeciderint, in so far as the defendant and the plaintiff therein were concerned. It must be remembered that this is not a contest between the plaintiff and other creditors attempting to assert their rights. The judgment guando aeciderint required the defendant to pay the claim assigned to this plaintiff out of any assets that might come into her hands to be administered other than such as were specified in her answer therein, and that *18the plaintiff should have execution therefor. There is no reference in the judgment quando acciderint to the claims of any other person to be paid out of after-acquired assets, and we think the Circuit Judge, as to these parties, plaintiff and defendant, was right in the principle announced by him as stated in this exception. This exception is overruled.

¶176 The third exception to the order of Judge Fraser is as follows: “For that his honor, Judge Fraser, erred in holding upon demurrer that the amended complaint stated a cause of action; whereas his honor should have dismissed the amended complaint, on the ground that there were no allegations of fact to show that the assets alleged to have been received by the defendant were applicable to the plaintiff’s judgment, and that the said defendant bad wasted and misappropriated the said assets.” The plaintiff alleges, in paragraph 8 of the amended complaint, that the defendant, after the recovery of the judgment quando acciderint, received assets of the estate, “which said sum is applicable to the payment of the judgment above alleged, all of which amount said defendant has failed and refused to apply to the said judgment, but has wasted and misappropriated.” In considering the second exception to Judge Fraser’s order, this court held that the assets just mentioned were prima facie applicable to plaintiff’s judgment. We think that the allegations of the complaint, that the defendant has failed and refused to apply the said assets to the judgment quando acciderint, but has wasted and misappropriated them, are allegations of fact, and not conclusions of law. This exception is overruled.

¶18The case next came on for trial on the said amended pleadings before his honor, Judge James Aldrich, and a jury, at the summer term, 1894, of the said court. At the close of the plaintiff’s testimony the defendant moved for a nonsuit, which was refused. The grounds upon which the motion was made, together with the reason assigned by the presiding judge in refusing it, will be reported with the case. The defendant then offered testimony, at the close of which his honor charged the jury. The jury rendered a verdict for the plaintiff for 1666.55, upon which judgment was entered. The plaintiff’s *19exception to the ruling and charge of his honor, Judge Aldrich, will be set out in the report of the case.

¶197 The first exception (No. 4, in the “Case,”) is disposed of by the case of Mickle v. Congaree Construction Co., supra, the rubric of which [in 19 S. E. R., 725,] is as follows: “An allegation in the complaint that plaintiff is a duly appointed and qualified administrator of a deceased intestate, is sufficient, where no objection was-made to it other than by oral demurrer at the trial.” This exception is overruled.

¶208 The second exception (No. 5) is disposed of by the case of Hall v. Woodward, 30 S. C., 578, in which Mr. Justice Mclver says: “When he introduced in evidence the original answer, admitting these facts, which we think was competent evidence, just as any other written or verbal admission made by defendant, he made out a prima facie case, which threw the burden of proof upon the defendant to rebut or explain such admission, and Judge Witherspoon very properly gave the plaintiff the benefit of this view. As we have said, this original answer was competent evidence, just as a letter or any other writing signed by the defendant would have been, but it was not conclusive of the fact therein stated. If it had remained as a part of the pleading, then it would have been an admission of record and conclusive. But when it was ‘sponged out’ as a part of the pleading — to use the expression found iu some of the cases — it lost its conclusive character, and stood like any other written or verbal admission which the defendant may have made, open to explanation.” This exception is overruled, as is also the eleventh exception (No. 14), which raises the same question.

¶215 *208 *19Parts (a), (b), and (c), of the third exception (No. 6) are disposed of by the principles announced in .considering the second exception to Judge Fraser’s order, and cannot be sustained. Part (d) cannot be sustained. The answer was not a pleading in the case in which it was offered in evidence, and, therefore, creating a conclusive admission of the matters therein alleged, but was introduced just as any other written or verbal admission. It was for the jury to say *20what part of it they believed. If Judge Aldrich had passed upon the facts alleged in the answer, he would have invaded the province of the jury. The third exception (No. 6) is overruled.

¶22All the other exceptions except the seventh (No. 10) will be considered together.

¶239 In Am. & Eng. Ency. of Law, page 386, it is said: “Under plea of plene administravit, in answer to the proof of assets, the executor or administrator may show that he has exhausted the assets in discharging debts of a higher rank before suit commenced.” Also, Ibid., page 387: “The executor or administrator may plead a retainer for the expenses of the funeral, or probate charges, or to reimburse himself for payments made out of his own pocket in discharge of debts superior to the plaintiff’s before commencement of suit.” In 2 Williams on Executors,page 1667, it is said: “Again, an executor is bound to plead a debt of a higher nature of which he has notice, in bar of an action brought against him for a debt of an inferior nature, and reins ultra, if he has not assets for both, otherwise it will be an admission of assets to satisfy both debts.” See, also, Ibid., pages 1670-1,1682-3. All such matters are part of the administration of the estate, which the executor or administrator is compelled to set forth in, “the full and particular account of the administration of the estate,” in his plea of plene administravit.

¶24The defendant having had the opportunity, as well as it being her duty, to present the real condition of the administration of the estate in the first action, we will now consider her right to a second opportunity for such adjudication. The rule is so clearly stated in the case of Micheau ads. Caldwell, 1 Speer, 276, that we quote somewhat at length from that case. The court says: “Iu the case of Earle v. Hinton, 2 Str., 732, Chief Justice-Eyre said: ‘It- is a settled rule in law, that if a defendant has a matter proper for his defence, and he neglects to plead it in bar to the action at the time he may, he shall never take advantage of it after.’ And Justice Butler expressed himself in nearly the same words in the very strong case on this subject of Ewing v. Peters, 3 Term, 685, where the change in the consequences of *21a judgment, which result from the Statute of Anne allowing double pleas, has been pointed out by Justice Grose. So universal is the rule mentioned above, that it is constantly acted on, even by the Court of Equity, as may be seen by the case of Maxwell v. Connor, 1 Hill Ch., 14, where Chancellor J. Johnston, in reference to what he acknowledged to be a hard case, uses the following strong language: ‘If a defendant has been before a competent tribunal, which has proceeded to judgment, that decision until reversed is conclusive upon him in every tribunal having concurrent or other jurisdiction. It is conclusive upon him as to every matter of defence not'only presented but which could have been presented by him; and it is conclusive upon him, although the judgment be erroneous, if he acquiesces in it and does not proceed to reverse it. It is conclusive on him because a party, whenever he is brought into a court, is bound to full diligence, which, if he uses, he will obtain his right; if he neglects, either in putting in proper pleas or introducing all his evidence to support them, he has no one to blame but himself, nor will his neglect in one court be allowed to give him a right to a second trial either in that court or another. If the tribunal before which he commits errors in deciding his appeal is not to a court of merely concurrent jurisdiction, but to that tribunal which is by the Constitution provided exclusively and expressly for the correction of errors, and if he neglects to prosecute an appeal, he must bear the consequences.’ … To decide, then, whether this administratrix can now plead that she had no asset when the former recovery was had against her, it is sufficient to ask, could the want of assets have been then pleaded? and could the judgment, de bonis, &c., et si non, &c., have been rendered against her, if the want of assets had been made then to appear? The plea of plene administravit would, in the former action, have been a good defence; and, if true, the judgment against her could at most have been only for assets guando acciderint. Her neglect to enter the plea was an admission of assets, which she cannot now retract without contradicting the judgment. … Pleading one only of two pleas necessary to a full defence, more especially of two admissible pleas, pleading that *22which is untrue and neglecting the other said to be true, is, at least, default pro tanto; and upon the universal rule before mentioned, is, after judgment, an acknowledgment that whar was omitted would not have availed.” See, also, Trimmier v. Thomson, 19 S. C., 247, and the cases therein cited.

¶2510 To the allegation of the answer that there are other claims against the estate of equal rank with that of the plaintiff, it is only necessary to refer to the ease of Huper v. Dawson, 3 Rich., 328, to show that such question cannot be considered in an action at law. In that case the court says: “The plaintiff, has obtained judgment against the defendant for a bond debt of their testator, and the amount has been levied on his estate and is in the court. But the State Bank comes and alleges that they are also a bond creditor, and entitled to be pa,iá pari passu with the plaintiff. Now there is no proceeding by which the plaintiff can put in issue at law the factum of the bond to the State or the quantum of assets. The executors alone are capable of making up their issues with the bank. It follows, then, that the plaintiff is entitled to be paid out of the fund in court in exclusion of the bond debt claimed to be due by the bank; and for the same reason the bank is entitled to be paid its prior judgment in preference to the plaintiff.” These exceptions are overruled.

¶2611 The seventh exception (No. 10) is overruled for the reasons therein stated by the presiding judge, which are satisfactory to this court.

¶27It is the judgment of this court, that the judgment of the Circuit Court be affirmed.