Gist v. Rutherford , 1885 S.C. LEXIS 36 ( 1885 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

William Rutherford, late of Newberry County, died, in 1845, testate. Dr. Thomas B. Rutherford qualified as executor of the will. The testator bequeathed to the appellant a legacy which, in some proceeding before the ordinary of said county had in 1849, was ascertained to amount at that date to $1,920.38. In May, 1856, the petitioner, then the wife of Henry Epting, filed a bill in equity, praying that her legacy, in the hands of Thomas B. Rutherford, be invested in a tract of land to be settled to her separate use upon certain terms. The interest on the legacy up to that time seems to have been paid. Henry Epting and Dr. Rutherford were made parties to this bill, who answered, consenting to the prayer. An order was accordingly made directing the investment, and referring it to the commissioner to report a suitable tract. The commissioner, in 1857, reported, and recommended a tract of land containing one hundred and twenty acres, belonging to the said Henry Epting for the investment. In September, 1857, the court confirmed this report, and ordered the investment at the price of $1,634, and directing Dr. Rutherford to hold the land subject to the terms of the trust, and that the costs be paid out of the legacy. In the meantime Dr. Rutherford had obtained a large judgment on Henry Bpting, amounting to $1,290.35, February 9, 1855. No deed was ever executed from Henry Bpting to Dr. Rutherford, but Mrs. Bpting and her husband were in possession, and have so continued since.

Dr. Rutherford died in 1865, intestate, and in May, 1866, the bill in which this petition is a matter in re was filed by R. V. .Gist and wife et al. to partition his real estate; but it being ascertained that this real estate would be necessary to be used in aid of the personalty to pay debts, the bill was converted into a bill to marshal assets, and creditors were called in and enjoined from suing elsewhere. The claim of the petitioner was presented, but before the commissioner reported on-claims, Chancellor Lesesne, in 1868, passed, an order in this bill, directing that the tract of laird aforesaid be vested in the trustee of the petitioner, under the terms and limitations of the trust, and that the judgment which Dr. Rutherford held against Henry Epting be marked satisfied, and the debt and interest represented by 'said judgment be credited upon the claim of Harriet Bpting against the estate of Dr. Rutherford. In April, 1870, Thomas V. Wicker having been appointed trustee of Mrs. Epting after the death of Dr. Rutherford, a deed of one hundred and twenty acres (the land above referred to) was executed by Henry Epting to the said trustee, Wicker, in consideration of $2,502.07. It appeared in evidence before the commissioner that Dr. Rutherford had paid to Mrs. Epting, in 1858, $180 by note on Wicker, besides several other payments before that date, and that Mrs. Epting had been in the possession of the land since the filing of her bill praying the investment in 1856.

No report was made on the claims of creditors until 1874, when the former commissioner was made special referee and made a report, in which he stated that the decree in the case of Epting v. Epting & Rutherford, had been satisfied, except as to certain items of costs. This report was confirmed in 1877, and there was no further reference to the claim of the petitioner among the debts established or rejected.

Thus matters stood until May, 1882, when the petition below was filed in re, in the same case of Gist and wife v. A. O. Rutherford, which seems to be still pending. The petition asked leave to present the claim of Harriet Epting for her legacy under the will of William Rutherford against the estate of Dr. Rutherford, executor, amounting to $1,920.38, on July 29, 1849,-acknowledging a credit of $400, and ignoring the settlement of the land in trust upon her altogether. This petition was referred to C. D. Barksdale, master for Laurens County, with a limitation that it should not be regarded as opening any matter already adjudicated, or as an acknowledgment in any way of the claim of Mrs. Epting, or of the fact that it had not been settled and adjudicated. The master, after full investigation, made a careful and well-considered report, both upon the law and the facts, in January, 1884, in which he found, first, that the claim of the petitioner' was res adjudicata ;■ second, that it had been satisfied and was barred by the lapse of time. And he recommended that the petition be dismissed with costs.

The petitioner excepted to this report, upon the following grounds: “1. That the master erred in not finding, as requested, that Thomas B. Rutherford did not invest the legacy of the petitioner in the land of John H. Epting,-under the decree in Epting v. Epting & Rutherford. 2. That he erred in not finding, as-requested, that the excess of the claim of the separate estate over the consideration of the deed has not been paid. 3. That he erred in his conclusions of law that the' petitioner’s claim has been heretofore adjudicated and rejected. 4. That he erred in his conclusion of law that the petitioner’s claim is barred by the statute of limitations.” The case, upon these exceptions, was heard by his honor, Judge Aldrich, who, in a short order, overruled the exceptions and confirmed the report, dismissing the petition as recommended by the master. The petitioner has now appealed to this court upon the exceptions filed to the report of the master, claiming that his honor should have sustained said-exceptions.

The objection that-this petition could not be heard because of the fact that this party had already had her day in court under the call for creditors, with the report of the commissioner substantially against her claim, confirmed by the court, was not interposed when the motion for reference was made without prejudice. No objection, however, of this kind has since been made, and we must regard the petition, therefore, as properly before the court, and must consider the exceptions upon their merits.

The first two exceptions complain that the master did not find that the legacy of plaintiff had neither been paid nor had been invested in the tract of land mentioned. We do not see how the master could have found either of these facts as requested. It appears that at the time the petitioner filed her bill to have the fund invested — i. e., in May, 1856 — the interest had been paid up. The corpus amounted to $1,895. Previous to that time— i. e., in February, 1855 — there was a judgment in the office against Henry Epting, amounting to $1,290. This passed into the hands of Dr. Rutherford. It appears, too, that in 1858 Dr. Rutherford paid the petitioner, in anote on Wicker, $180, and he was directed to pay the costs of the bill out of the legacy, amounting to some $190. These amounts with the judgment would be near $1,700. The interest on the legacy up to May, 1856, when the bill was filed, had been paid; since then the petitioner has been enjoying the rents and profits of the land, and therefore no interest could be charged. So that the payments above, with the judgment, are nearly the amount of the legacy, which, according to the finding of the master, was $1,815. Now give the estate credit for the other payments which the report states had been made, though the amounts are not stated, and it might well be supposed that the legacy was understood by the parties to be paid in full, especially as the petitioner did not press before the commissioner for any excess, but submitted to the report, in which no additional amount was allowed her.

It appears clearly enough that this legacy had been substantially invested by Dr. Rutherford in the land. It is true the deed from Henry Epting to the trustee was not executed until after the death of Dr. Rutherford. Rut the petitioner had gone into the possession of the land previous to his death, in pursuanee of the order directing the investment, and the subsequent order of Chancellor Lesesne merely consummated the previous arrangement.

Had this claim been previously adjudicated ? It was certainly before the commissioner, because he reported that the decree directing the investment had been satisfied except the costs. Whether the petitioner made any claim for an excess over the investment does not appear; but she had the opportunity, and according to the authorities cited by the master, she must be concluded — certainly until the report of the special referee is reversed. That report was confirmed in 1877, and then became the judgment of the court. There has been no appeal, and it has settled the rights of the parties for the time being at least. Whether it can be reversed as an interlocutory judgment, at some future stage of the case, is not before us.

We concur in the judgment of the court that the claim is barred by the lapse of time. Dr. Rutherford put the plaintiff into possession of her legacy through the land in 1856, he paid her $180 in 1858, and this is the last connection which he seems to have had with the matter. The petitioner has not claimed from any one any further payment until the filing of this petition in 1882, twenty-four years, and some seventeen years since the death of Dr. Rutherford. We adopt the reasoning of Master Barksdale on this subject and the authorities to which he refers.

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