McIntosh v. Zeigler

December 9, 1924. The opinion of the Court was delivered by The following is the agreed statement in the case:

"This is a proceeding under the last will and testament of Mrs. Mary E. McIntosh, who died in March, 1916, possessed of a large estate of both real and personal property. The legatees under her will are Mrs. Howelle M. Zeigler, Mrs. Louise M. Long, W.M. McIntosh and Guy C. McIntosh and two minor children of a deceased daughter, Mrs. Allison. Mrs. Zeigler was named as executrix under the will, and it was duly probated and she qualified as such. The will relieved her from the filing of any return except her final return, but she did file returns on two occasions. In September, 1923, she submitted her final return to the Probate Court for Abbeville County for approval and for a discharge as executrix. One of the legatees, G.C. McIntosh, objected to the adjustment of interest on sums of money which had been paid over to the several legatees at different times as shown by the final return. A copy of this final return is hereto attached, marked Exhibit A, and a copy of the interest adjustment is hereto attached, marked Exhibit B. The Probate Court heard the matter on the 11th of December, 1923, and allowed the adjustment of interest on the different items which had been paid over to the several legatees. The appellant, G.C. McIntosh, appealed to the Circuit Court on the grounds which are to be set forth, marked Exhibit C, and the appeal was heard upon the record which was comprised solely of a copy of the final return, Exhibit A, a copy of the adjustment of the interest charges, Exhibit B, exceptions, Exception C, and the letter transmitting the record, Exhibit D. No other parts of the record of the Probate Court were included in the return."

"The matter came up to be heard at Abbeville on the ____ day ____, 1924, at which time it was marked heard, and argued at the April term of the Circuit Court for Greenwood County, on the 15th day of April, 1924, before his Honor, Judge T.J. Mauldin, whereupon the following order was passed. A copy of the order is hereto annexed and made a part hereof, marked Exhibit E.

EXCEPTIONS "(1) The presiding Judge erred in holding that the distribution made to legatees was in the nature of advances.

"(2) The presiding Judge erred in holding that the legatees were liable for interest on the partial distribution made to them.

"(3) The presiding Judge erred in failing to consider and pass upon the second, third, and fourth grounds contained in the appeal from the judgment of the Probate Court.

I. The first exception is merely a question of words and not reversible, even if incorrect.

II. The presiding Judge is fully sustained by the authorities cited in his decree. They declare the only just rule. Let the decree be reported.

III. The whole record in the Probate Court is not before us, but Judge Mauldin finds as a matter of fact that these questions were not raised in the Probate Court, and he was correct in holding that he could not consider them.

This exception is in violation of Rule 5 of this Court, and, therefore, cannot be considered.

The judgment appealed from is affirmed.

MESSRS. JUSTICES WATTS, COTHRAN and MARION concur.

MR. CHIEF JUSTICE GARY did not participate.