Opinion
13046
December 30, 1930.
Before RAMAGE, SPECIAL JUDGE, and JOHNSON, J., Chester. January, 1928. Spring Term, April, 1929. Affirmed.
Action by Mary J.W. Gibert and others against J.L. Glenn, Executor of the Will of Nancy M. Waters, deceased, and another as the Administratrix of the Estate of S.E. McFadden, deceased.
Judgment for plaintiff and defendants named appeal.
JUDGE'S CHARGEMr. Foreman and gentlemen of the jury:
The plaintiff, Mary Waters Gibert, and her minor children, by James R. Reid, their guardian ad item, bring this their action against the defendant, J.L. Glenn, Jr., as executor of the last will and testament of Nancy M. Waters, deceased; and also against Mary G. Sledge, as administratrix with the will annexed of the estate of Samuel E. McFadden, deceased, and, in substance, allege that the testatrix, Nancy M. Waters, and the testator, Samuel E. McFadden, were, by the last will and testament of the late James A. Waters of this County and State, duly appointed executors of that will, or executor and executrix; and also trustees of a certain legacy left by him (James A. Waters) to his daughter, the plaintiff in this case. And they allege further, in effect and in substance, that the said Nancy Waters and Samuel E. McFadden qualified as executors and entered upon the discharge of their duties as such, and procured the plaintiff in this case to execute unto them a receipt for her distributive share in that estate, or rather for a residuary legacy in that estate, although she did not get any money for it at all, except $390.
They also allege, in substance, that, after or upon their discharge as executors, then Nancy Waters and Samuel McFadden continued to act as trustees of that fund, or legacy, and that they have never accounted to her, or her and her children, for the balance due her; namely, the sum of $2,825, with interest on $1,425.00 thereof, from October 23, 1925, at the rate of 7 percent. per annum, and $1,400, with interest thereon from May 24, 1924, at 7 per cent. per annum; and for those sums they ask a verdict at your hands in this case.
Now, the complaint is rather lengthy, gentlemen. I haven't attempted to give you a full statement of what they allege in that complaint; that is the substance of it. I can recite it even more than that; they allege, in substance, that the testatrix, Nancy M. Waters, of whose will the defendant Glenn is executor, and Samuel E. McFadden, of whose will — no, represented now by Miss Mary Sledge, I believe, administratrix — that they were appointed trustees of the legacy left by the plaintiff's father, under his last will and testament, and that they have never accounted for it, and that they are now due and owing that sum stated in the complaint, $2, 825.00, with interest on $1,400 from one date, and $1,400 from another date, at 7 per cent.
Now, the defendant Glenn, as executor of the will of Nancy M. Waters, deceased, comes in and by his answer, first pleads what is known as a special denial; that is, he admits certain formal allegations in the complaint, but he denies all of the material allegations of the complaint; and by that special denial he puts the plaintiffs to the proof of their case as against him; and, as perhaps you have heard me tell other juries, whenever one person comes into Court asking a jury to give them a verdict for a sum of money or certain property in dispute, it is but right and proper that the person entitled to such money or property should be required to prove it; and that is what this denial as pleaded by the defendant Glenn serves to do — serves to put the plaintiffs to the proof of their case, more about which I will have to say to you later on in my charge.
Then the defendant, Glenn, for a further defense, alleges, in substance, James A. Waters, by his last will and testament, did leave a certain legacy to the plaintiff. He alleges further, however, that McFadden and the administratrix, Nancy Waters, being of the opinion that the plaintiff, Mary Jane Gibert, had married a worthy, and who was a capable business man, did turn over and deliver to her the property that she was entitled to under her father's will; and that she did, at that time, execute and deliver to them, after accepting the sum of money in question, $3,279.98 — they allege that she did, after accepting that sum from them as executors, execute and deliver to them a receipt for that; and they set out in this answer a receipt, they allege, that she then and there accepted that sum of money; that the executors filed their final return as executors and received their discharge from the Probate Court in May, 1910. They allege further that, after that was done, the plaintiff, Mary Waters Gibert, procured McFadden, in his individual capacity and as her agent and attorney, to invest that money for her, and for her, on her account, and he did do it, and that for a long number of years, McFadden accounted to her for the interest or income arising from it. He alleges further, in substance, that, after the delivery to, and the acceptance by Mary J. Waters Gibert of that sum of $3,279.98, and after the execution and delivery by her of her receipt therefor to Nancy Waters and Samuel McFadden as executrix and executor, respectively, they, Mrs. Waters and McFadden, never acted either as executors or as trustees; but that McFadden, by virtue of the plaintiff's appointment of him as her own agent and attorney to invest her funds — that he continued to handle them solely as her attorney and agent, and not as trustee or executor. They allege further that, as a result of the relationship which they allege was created between the plaintiff and McFadden — that of principal and agent, or attorney and client; and the acceptance from him by the plaintiff, from year to year, of the income from the fund, or the interest on the fund — she acquiesced in the settlement and did ratify and confirm it, and that therefore she cannot now claim anything against the estate of Mrs. Waters. They allege further that, by virtue of the same facts, in substance, she is now estopped in law to deny that McFadden was her agent and her attorney, solely in his personal and individual capacity, rather than as a trustee under the will.
There is another plea in this answer which, in substance, claims that there is another action pending in which the plaintiff has filed her claim against the estate of McFadden; and, as a result of that, she cannot recover in that action. So far as that last defense is concerned, I have ruled in this case that there is not sufficient testimony to go to the jury tending to establish the charge of that allegation. Therefore you are not concerned about whether or not there is any other suit or any other claim for this money. You determine the rights of the parties under the evidence in this case and the law as given you by me.
Now, then, the defendant, Mary G. Sledge, as administratrix with the will annexed of the estate of Samuel E. McFadden, comes in and first pleads, just as Glenn does, what is known as a special denial; that is, she admits, in substance, that Nancy Waters left a will whereby she appointed Glenn executor. She admits further that McFadden died, leaving a will, and that she (Mary G. Sledge) is now the qualified administratrix of the estate of McFadden, with the will annexed; and that in May, 1910, Nancy M. Waters and McFadden did procure the plaintiff, Mary J. Waters Gibert, to execute and deliver to them a receipt for that sum, and thereupon they did procure their discharge as executors; and she denies all the other material allegations of this complaint; and that serves to put the plaintiffs to proof of their case as against her and against the estate of McFadden.
Then she alleges further, in substance, the institution of some suit against McFadden's estate, and the filing of a claim by the plaintiff against the estate of McFadden — with that you are not concerned, because I have ruled there is not sufficient evidence in this case to warrant consideration of that.
I think, in brief, gentlemen, that states to you the issues raised by these pleadings. You will have them with you in your jury room, and, if you desire to familiarize yourself with them, you may do so at your leisure in there.
Now, these papers, gentlemen, this complaint on the part of the plaintiffs, and these answers on behalf of the defendants, Glenn and Sledge, raise the issues or questions that are to be decided in this case. The issues or questions of law, of course, are for the Court; but the issues or questions of fact arising out of the evidence in the case are for you, the jury; and, in that connection — I don't known that it is necessary for me to say this to you — of course, the evidence means more than the mere statements of witnesses from the stand. Evidence means any written evidence — documents, papers, books, etc. It means more than mere testimony of witnesses by word of mouth, from the stand, I might say right here — and I always endeavor to impress this upon a jury — that under our system of jurisprudence these pleadings and this trial impose upon you and upon me certain duties which, under our oaths, we are bound to discharge, without fear or favor, without sympathy or prejudice, without friendship or enmity, but honestly and conscientiously, in a sincere effort to let the result of our labors speak the truth of the controversy through the verdict written by you, for that, in its last analysis, is what verdict means — the truth. It is my duty to see that both the plaintiff and the defendant obtain a fair and impartial trial; and that duty I have endeavored to discharge so far as my ability will allow. It is also my duty to instruct you in what I conceive to be the law applicable to the case. It is your duty to hear the testimony, to consider it carefully, to weigh it, to analyze it, to sift it, to find the truth of the controversy from it, and to decide the facts of the case. When you have done that, when you have found the truth of the controversy from the testimony, and have yourselves decided the facts of the case, then you apply those facts to the law given you by the Court and make up your verdict; and in no other way can this or any other jury arrive at an honest verdict in any case. In that connection, however, of course, I wish to impress upon you that, just as I am the sole Judge of the law of the case so far as this particular trial is concerned, so you are the sole judges of the facts in the case; and therefore, no word or act of mine, at any time during the progress of the trial, or even during the course of this charge, is intended as, or can be construed by you as, an intimation of what my opinion is on the facts. You are the sole judges of the facts. And you are just as supreme in your particular sphere of investigation and decision as I am in mine. In other words, gentlemen, you can't invade my province to say what the law of the case is. Under your oaths you are bound to take the law from me as I give it to you, whether you happen to approve of that law personally or not — whether I happen to give you that law correctly or not; but, if I should give it to you incorrectly, there is a higher Court at Columbia, whose duty it is to correct me. On the contrary, I can't trespass upon your rights to say what the facts of the case are. Under the Constitution of this State, the judges are prohibited from charging juries on the questions of fact that arise in the case. We are prohibited from intimating to a jury what we think of the facts in the case, or even from stating what the testimony in the case is. Believing, as we do, in the superiority of trial by jury, under our system, the right of the jury to reach its conclusion on the facts of the case is zealously guarded. Of course, you understand, when I say you are the sole judges of the facts in the case, and that you are just as supreme in your particular sphere of investigation and decision as I am in mine, that doesn't mean that you can walk out there in that jury room and arbitrarily, capriciously, or through sympathy on the one hand, or prejudice on the other, write any such verdict as you might choose arbitrarily or capriciously or through sympathy or because of prejudice to write; but it means that, in your honest effort to ascertain the truth of this controversy, in your endeavor correctly to ascertain the facts in issue, you are just as supreme as I am in my effort correctly to charge you the law applicable to the case; and that, in attempting to decide the facts of the case, you have the right to do so without any intimation or insinuation from the Court as to how you should decide it.
I charge you further in this case, gentlemen, in that connection, that, whenever one or more persons come into a Court of justice seeking to recover money or other things of value from another person or persons, the law imposes upon the person, usually called the plaintiff, the burden of proving or making out or establishing his case by the greater weight of the evidence; and therefore you must know what that term, "greater weight of the evidence" means. I charge you that it means nothing more or less than the greater weight of the truth as you, the jury, find the truth from the evidence adduced in the case. I charge you specifically that greater weight of the evidence doesn't mean or depend upon the swearing of the greater number of witnesses, for, in courts of justice, witnesses weigh in value rather than count in number; and evidence weighs in value rather than counts in volume; and the jury may find the truth to lie in the mouth of a single witness on one side of the case as against the testimony of six, eight, or one hundred on the other side. The question is, where does the truth lie — where does the truth of the controversy lie? and, wherever the jury finds the greater weight of the truth to lie, there lies the greater weight of the evidence. Another way that term is frequently illustrated by Circuit Judges is this, gentlemen — bearing in mind, as I have already told you, that, when a plaintiff comes into Court seeking to recover money or other thing of value from another person, the plaintiff must prove his case, or her case, by the greater weight of the evidence, it is not unusual for Circuit Judges to tell the jury, "The way you get at this — that is, yourselves — imagine that you have a pair of these old-time scales with two pans, you know, and you take the evidence introduced in the case on behalf of the plaintiff and put it in the pan, we will say, on this side (illustrating), and then you take up the testimony adduced in the case in behalf of the defendant and put it in the other pan. If those scales remain evenly balanced, then the plaintiff has not proved his or her case by the greater weight of the evidence. But if that pan in which you in your imagination have the evidence on behalf of the plaintiff, goes down, outweighs that on the other side, why then, the plaintiff has made out or proved his case by the greater weight of the evidence."
Now, I charge you further in this case, gentlemen, that one may, by his will, appoint the same person or persons both as executors and as trustees, but no man or woman by his or her will can force another to act as his executor or as trustee of any legacy or devise left by him in that will; and one or more persons who have been appointed both executors and trustees may accept the executorship and qualify as executor, and decline or refuse or fail to accept the trusteeship; or one of the executors, or one of the persons named both as executor and as trustee, might decline to act as executor, but, nevertheless, accept the trusteeship; and in that connection I charge you that the mere qualification of persons as executors, where they have been named by the will as both executors and trustees — that the mere qualification of those persons as executors, standing alone of itself, would not constitute them also trustees. In other words, there must be an acceptance of the trust imposed by the tursteeship. Now, of course, in order to accept, one doesn't necessarily have to go and sign some instrument and say, "I accept the trust." That frequently is done; a man may sign the instrument and say, "I accept the trust imposed upon me by the foregoing instrument." One doesn't have to do that specific act. One may, by act or conduct, or by a course of conduct, do things which show that he has accepted the trust, without his having ever specifically said, "I accept the trust imposed upon me." And in that connection I charge you that, if one does actually accept, either by express words or by conduct, which shows that he has accepted, that if one does actually, I say, under those circumstances, accept the trusteeship, he will not thereafter be allowed, by his own act, to defeat or destroy his trust. I charge you also, in that connection, that, if two persons are named by a will, both as executors and as trustees, if both do accept the trusteeship created by that will, then either cotrustee would be liable for the acts and conduct of the other cotrustee, if he made him his agent. And in that connection I charge you that one cotrustee may make another cotrustee his agent, and if he does do it, why, of course, he would be liable for the acts and conduct of that other trustee.
In that connection also, gentlemen, I charge you this, with particular reference to my ruling on certain testimony here yesterday or this morning, I don't recall — I charge you that under the law, gentlemen, an agency of one person for another cannot be established in law by the declarations of the agent alone; but if there is other evidence in the case, independent of the alleged agent's declarations, which other elements tend to establish or show the existence of such agency, then the Court must admit in evidence the alleged declarations of the alleged agents, and then it becomes a question for the jury to say whether or not that testimony is sufficient to establish the relationship of agency.
I charge you also, gentlemen, in regard to the question of trusteeship, that, if two persons are appointed trustees, if they both accept the trusteeship or the trust imposed by that trusteeship, then either is also liable for the acts of the other, wherein either by action on his part or nonaction on his part makes it possible for his or her cotrustee to injure or damage the beneficiary of that trust, if the beneficiary be actually damaged or injured by virtue of that cotrustee's act.
I charge you further in this case, gentlemen, with regard particularly to certain defenses interposed by the defendant, Glenn, that, where the conduct of one person is inconsistent with a known fact or right of that person, and such conduct induces the belief in the mind of a third person that such fact or such right of the other would not be asserted against such third person, then that conduct would preclude one person from asserting that he had not relinquished the right that he had founded on that fact. That is sometimes called estoppel — I expect, more accurately, it is a waiver of estoppel.
I charge you, also, in regard to the plea of estoppel by the defendant, Glenn, in this case, that what is known as estoppel arises from conduct of one party, or conduct on the part of one person or party, which has induced another person or party to act or refrain from acting, to his prejudice. Under those circumstances, the person whose conduct has induced another person to act or refrain from acting, to his prejudice, he would be estopped or precluded from asserting any fact inconsistent with that conduct of his.
Mr. Glenn: I think, in accepting the proposition, that if one person constitutes another person his agent or attorney for a certain purpose, and then by a long course of conduct ratifies that act, they cannot then deny it.
The Court: That is true. I just give you that in the exact language which counsel used. That is a sound principle of law. Not only would that be true by a long course of conduct — if that is actually done, even in business, if one person appoints another his agent to do a thing, or attend to a piece of business for him, whether or not that agent continues to do it for a long space of time, the mere appointing of the agent would make him responsible for his act, and didn't prevent him, however, from going against that particular person for any injuries or loss or damage he might have suffered as a result of that agent's act or conduct — it would go against him, but it would not go against somebody else.
Now, gentlemen, I am going to try to put this thing to you in this fashion — I think, perhaps, I can make it a little clearer to you to suggest to you certain things you ought to ask yourselves in this case.
It is conceded by all parties that Nancy M. Waters and Samuel E. McFadden were appointed executors of the will of James A. Waters, deceased, and that they did qualify as executors of that will. No question about that, as I take it, from any circumstances in the case. The plaintiffs in the case go further, however. They state they not only did that, but they also became trustees under that will. The defendants say, "No, we didn't; we became executors or qualified as executors, without accepting the trust imposed upon us by virtue of the executorship or in the trusteeship." And therefore, one of the first questions for you to answer is, Who is right? Whom does the evidence and the law say is right about it? Did Mrs. Nancy Waters and Samuel McFadden accept the trusteeship as well as the executorship in this case? If you answer that question "No," if you conclude from the evidence that they were simply executors, why you wouldn't have to pursue that angle of it, certainly so far as the defendant, Glenn, is concerned, or as to either of them, as far as that is concerned. But, if you should conclude that they did accept the trusteeship, both of them, then you would go a step further and inquire, Did either Mrs. Waters, either as cotrustee of McFadden, constitute him, her agent, and did the plaintiff suffer, as the result of any act of McFadden's? Or, second, if she didn't create him her agent, did she (Mrs. Waters), after accepting the trusteeship, if you should conclude that she did accept it, did she, by her act — by any act of hers — place the property in question, or the fund in question, in the sole possession and control of her cotrustee, and did the plaintiff, as a result thereof, lose? If she did, Mrs. Waters would be responsible for it.
Mr. Marion: This suggestion, on burden of proof —
The Court: As to special pleas of the defendant —
Mr. Marion: If the relation is established of trusteeship, as your Honor has charged, on the burden of proof, it is incumbent on the plaintiff to prove there was a trusteeship, then, after that, the burden of proof is upon the defendant —
The Court: That is true. I thank you very much for calling it to my attention. I will go that a step further, too — that as to these special defenses set up by the defendant, Glenn, that is, acquiescence and ratification, and I believe, and estoppel, the burden of proof is upon the defendant to prove that special defense by the greater weight of the evidence.
Now, I charge you further, gentlemen, as I have already intimated to you, that, if the evidence in this case satisfies you that the plaintiffs — if the evidence in the case satisfies you, by the greater weight thereof, as I have defined that term to you, that the plaintiffs have made out their case and are entitled to a verdict at your hands, it would be your duty to return a verdict in their favor. On the contrary, if the evidence doesn't satisfy you that the plaintiffs have made out their case, or if the evidence on behalf of the defendants satisfied you that the plaintiffs are not entitled to recover, it would equally be your duty to return a verdict in favor of the defendants. And in that connection I charge you that you are not concerned with the consequences of your verdict, whether it be for the plaintiffs or for the defendants, other than that your verdict shall speak the truth, whatever the truth may be in this case under the evidence adduced upon that stand and the law given you by the Court.
Now, gentlemen, it is within your province to return one of three verdicts in this case, I believe — you better follow me very closely in this, gentlemen. First, it is within your province to return a verdict for the plaintiffs against both defendants, in which case the form of your verdict would be: We find for the plaintiffs against the defendants, in the sum of so and so dollars, writing out the amounts in words and not in figures. Second, it is within your province to return a verdict in favor of the plaintiffs against the defendant, Sledge, alone; I don't believe there is any testimony in this record that would authorize a verdict in favor of the plaintiffs against the defendant, Glenn; I think, if I am not mistaken, that it was admitted that such loss as did occur — such funds that were lost, were lost as a result of misappropriation by McFadden, and Mrs. Waters could be responsible for McFadden's acts, as I conceive the law, only on the theory that she constituted him her agent, or that they were cotrustees, and that she, either by action or nonaction, put all the property in his hands — gave him possession and control of it, and there would be responsible for it. In other words, as I see it, the jury would find a verdict in favor of the plaintiffs against both defendants, or against the defendant, Sledge, alone, or in favor of both defendants. But, as I recall it just now, I don't believe there is any testimony in the record which would authorize a verdict in favor of the plaintiffs against the defendant, Glenn, alone. Now, if there is any question about that, I would like to hear from you.
Mr. Marion: I am not absolutely clear about it, but my impression is that it would be analogous — the jury might find that both might be equally guilty, or the jury could find against one or both, as they see fit — if either is liable, you can find a verdict against either or both.
Mr. J.H. Glenn: Your Honor has already expressed our views as to three possible verdicts.
Mr. Marion: I am not clear about it.
The Court: I will give you a chance to return four verdicts, gentlemen. If I am wrong, a high Court will correct me. I charge you, you can return one of four verdicts in this case, depending upon how you view — what weight you attach to the testimony; depending upon what conviction the evidence carries to your minds. First, it is within your province to return a verdict in favor of the plaintiffs against both defendants, in which event the form of your verdict would be: We find for the plaintiffs against the defendants, plural, in the sum of so and so, writing it out in words and not in figures. Second, it is within your province to return a verdict in favor of the plaintiffs against the defendant, Glenn, alone. alone, in which event you write it out in the same form, the sum in words and not in figures, as I have already explained to you. Third, it is within your province to return a verdict in favor of the plaintiffs against the defendant, Glenn, alone. Fourth, it is within your province to return a verdict in favor of both defendants, in which events the form of your verdict would be simply: We find for the defendants — plural. Whatever verdict you arrive at, you write it out on the back of this blue paper entitled summons and complaint, and sign your name, Mr. Foreman, with the word "Foreman" underneath. You take that in the room — the complaint and the answer; and you are entitled to have any of those exhibits you wish. You are entitled to them. You may take them now or send back for them.
EXCEPTIONS Exceptions as to Preliminary Motions1. That his Honor, C.J. Ramage, erred in his order of date June 9, 1928, in refusing to sustain the demurrer of defendant, J.L. Glenn, executor of Nancy M. Waters, the error being that the complaint on its face did not state a cause of action in favor of John Baskin Gibert and the other minor plaintiffs.
2. That his Honor, C.J. Ramage, erred in his order of date June 9, 1928, in refusing the motion of defendant, J.L. Glenn, as executor, to strike from the complaint all references to John Baskin Gibert and the other minor plaintiffs as fully set forth in this defendant's notice dated July 29, 1927; the error being that the said minor plaintiffs, as appears from the allegations of the complaint, had no actual interest in the land that warranted them being joined as parties plaintiff; that said minors were neither necessary nor proper party plaintiffs.
Errors as to Trial3. That his Honor, Judge J. Henry Johnson, the trial Judge, erred in allowing the witness, Brice Waters to testify over the objection of this defendant as to statements made by his stepmother, Nancy M. Waters, as to disposition of the legacy in the will of his father, James A. Waters, made to the plaintiff, Mary J. Waters Gibert; the error being that this witness, as the father of his children, who were named as contingent legatees under the will as their natural guardian under the law of the case as fixed by his Honor, Judge Ramage, in his order dated June 9, 1928, had such an interest in the case that his testimony was barred under provision of Section 708, Vol. 1, Code S.C. 1922.
4. That his Honor, the trial Judge, erred in admitting the testimony of Mrs. Chalmers Waters as to certain statements (pages 33-35) made by Mrs. Nancy M. Waters, testate of the defendant, Glenn, executor, as to the disposition of the Gibert legacy; the error being that, where the terms of the trust are stated in writing, the operation or acceptance of the trust cannot be proved by parol testimony.
(5) That his Honor, the trial Judge, erred in admitting the testimony of Mrs. John Rodman as to statements made by the deceased Mrs. Nancy M. Waters, as to the disposition of the Gibert legacy in the will of James A. Waters; the error being that where a trust is created by an instrument in writing, its acceptance and operation cannot be proved by parol testimony.
6. That his Honor, the trial Judge, likewise erred in admitting statements of Mrs. W. Barton Kee (page 42) as to statements made by the deceased, Mrs. Nancy M. Waters, as to the disposition of the Gibert legacy set forth in the will of Jas. A. Waters; the error being that, where a trust is created by an instrument in writing, its acceptance and operations cannot be proved by parol testimony.
7. That his Honor, the trial Judge, erred in admitting Exhibit D over the objection of the defendant, Glenn, as executor, which exhibit was a statement from S.E. McFadden to John Baskin Gibert, husband of the plaintiff; the error being that the statement was from one party designated to qualify as trustee, which statement on its face did not disclose any authority from the other party designated to qualify as trustee for issuing such statement; the error further being that such statement was to a third party who under the terms of the will had no vested interest in the alleged trust property as described in the provisions of the will.
8. That his Honor erred in admitting Exhibits E, E-1, and 2, which constituted a letter from S.E. McFadden, one of the designated trustees to J.B. Gibert, a party, who had no vested interest in the alleged trust fund; the error being: (a) That the letter was written twenty-one months after the discharge of the executor; (b) that the letter was written to a third party who had no vested interest in the alleged trust fund, and was not a communication to the plaintiff, or to any other party in interest; (c) that the letter was written by McFadden alone, and no authority appears in the record from Mrs. Waters directing him to write such letter for her; (d) that the examination of the witness, Mary J. Waters Gibert, plaintiff herein, as to this letter was an examination of a party about such a transaction as is forbidden by terms of section 708 of the Code.
(9) That his Honor erred in allowing the witness, Mrs. W. Barton Kee, to testify in reply to a certain statement made by the witness Nancy M. Waters as to the Gibert legacy (page ___); the error being that the testimony was not in reply, but cumulative, and that the testimony was incompetent under Section 708 of the Code.
(10) That his Honor erred in admitting the testimony of Chalmers Waters in reply as to statements made to the witness by S.E. McFadden as to the Gibert Legacy; the error being that the testimony was not in reply, but cumulative, and that the testimony was contrary to Section 708 of the Code.
(11) That his Honor erred in ruling upon the evidence in making the following statement before the jury (page 47): "There is testimony. tending, I say, to show that the executors or trustees, whatever they were at that time, desired one year in which to decide, and this was written nine months after the expiration, perhaps, of that year"; the error being: (a) That the foregoing statement is a comment on the evidence and an expression of opinion upon the testimony, and assumes that, at a time twenty-one months after the discharge of the executors, McFadden and Mrs. Waters in that period were either executors or trustees. The sole question for the jury, was at this period twenty-one months after the discharge of the executors whether or not the discharged executors were then trustees or were they free from all responsibility whatsoever; (b) the error further being that the Court Assumes as a fact that McFadden and Mrs. Waters had one year within which to decide whether they would act as trustees. Such privilege was not provided in the will, was ultra vires as to the powers granted the executor in the will, and the error of the Court in making this statement was a comment upon the evidence and further expression of opinion as to the testimony.
(12) That his Honor erred in admitting the following testimony of Brice McD. Walters over the objection of the appellant as follows: "Q. What did she have to say about it? A. She asked for twelve months time before she turned it over to her to think about"; the error being: (a) That this testimony is contrary to Section 708 of the Code; (b) That it was irrelevant, since the will did not provide that the executors should have a twelve-month period within which to make a decision as to the Gibert legacy.
(13) His Honor erred in refusing to strike out all parol testimony offered on the part of the plaintiff to show the creation of the alleged trust on the part of the deceased, Nancy M. Waters; the error being that the motion when made by the defendant Glenn, as executor (page ____), and renewed from time to time, should have been granted, in that under the facts in this case the alleged trust could be properly established by written testimony only.
(14) That his Honor erred in charging the jury as follows: "Did Mrs. Waters, either as co-trustee of McFadden constitute him her agent, and did the plaintiff suffer as the result of any act of McFadden's? "The error being that this statement assumed both the operation of the trust and that both executors acted as co-trustees together. That this was a charge upon the facts and stated as a fact one of the issues which the jury decide.
(15) That his Honor erred in charging the jury as follows: "I charge you can return one of four verdicts in this case, depending upon how you review — what weight you attach to the testimony; depending upon what conviction the evidence carries to your minds. First, it is within your province to return a verdict in favor of the plaintiffs against both defendants, in which event the form of your verdict would be: We find for the plaintiffs against the defendants, plural, in the sum of so and so, writing it out in words and not in figures. Second, it is within your province to return a verdict in favor or the plaintiffs against the defendant Sledge alone, in which event you write it out in the same form, the sum in words and not in figures, as I have already explained to you. Third, it is within your province to return a verdict in favor of the plaintiffs against the defendant Glenn alone. Fourth, it is within your province to return a verdict in favor of both defendants, in which event the form of your verdict would be simply: We find for the defendants — plural"; the error being that only three verdicts could be found in this case under the evidence, and that it was prejudicial error for the Court to charge the jury that four verdicts could be found, one of which was a verdict in favor of the plaintiffs against the defendant Glenn, as executor, alone.
(16) That his Honor erred in refusing the motion of defendant Glenn for a directed verdict in his favor upon the two grounds noted in the record; the error being that a verdict should have been directed in favor of the defendant Glenn, as executor, since only one conclusion could be reached under the evidence: (a) That the alleged trust contemplated under the will had not been sufficiently established by competent evidence; (b) that the evidence failed to show that S.E. McFadden was agent of Mrs. Waters, but on the contrary, proof conclusively shows that Mrs. Gibert, the plaintiff, had constituted McFadden her agent and attorney, which act Mrs. Gibert had ratified on numerous occasions.
(17) That his Honor erred in refusing to grant the motion of defendant Glenn for a new trial; the error being that, under the law and under the evidence of the case, this defendant was entitled to a new trial upon the eight grounds of the motion as disclosed by the record.
Mr. James H. Glenn, for appellant Glenn, Executor, cites: Minor plaintiffs had no interest and demurrer and motion to strike should have been sustained: 32 N.E., 369; 18 L.R.A., 381; 115 Ill., 644. Testimony of transactions with deceased party inadmissible: 9 S.C. 279; 18 S.C. 329; 57 S.C. 89; 88 S.C. 346; 70 S.E., 801; 12 S.C. 32; 29 S.C. 332; 7 S.E., 505. Attempt to prove express trust which was in writing by parol inadmissible: 52 S.C. 388; 57 S.C. 163; 35 S.E., 488; 78 S.C. 490; 59 S.E., 535; 1 Strob. Eq., 363; 1 McCord. Eq., 119; 39 Cyc., 44. Agency cannot be proved by declarations of agent: 17 S.C. 138; 44 S.C. 91; 31 Cyc., 1652; 7 S.E., 505. Charge on facts: Const. 1895, Art. 5, Sec. 26; 110 S.C. 137; 27 S.E., 490; 50 S.C. 161; 27 S.E., 645; 48 S.C. 489; 27 S.E., 659; 49 S.C. 550. Estate by implication: 35 S.C. 333; 14 S.E., 719; 109 S.C. 416; 96 S.E., 144. Error to admit parol testimony to contradict written documents: 140 S.E., 161; 131 S.C. 12; 127 S.E., 270; 124 S.C. 211; 117 S.E., 351; 129 S.C. 226; 123 S.E., 845; 34 S.C. 259. Where there are joint trustees, each is liable for only his own acts when done separately: 117 S.C. 195; 108 S.E., 407, 10 Rich. Eq., 247; 154 S.C. 456.
Messrs. J.H. Marion, H.C. Cox, McDonald Macaulay, Gaston, Hamilton Gaston, for respondents, cite: Complaint not demurrable on grounds of misjoinder of parties: 27 S.C. 318; 3 S.E., 473; 79 S.C. 438; 60 S.E., 971. Estate by implication: 28 R.C.L., 209; 23 R.C.L., 493; 35 S.C. 333; 148 S.E., 719; 46 S.E., 756. Who may be joined as plaintiffs: 1 Code 1922, Sec. 360. Party having no interest in action can testify as to statements of deceased: 111 S.C. 58; 96 S.E., 672; 113 S.C. 88; 101 S.E., 113. Parol evidence admissible to establish acceptance of trustee: 1 Perry on Trusts, 6th Ed., Sec. 261; Rice's Eq., 132. Agency may be proven by circumstantial as well as positive evidence: 135 S.E., 365; 133 S.E., 834; 137 S.C. 369; 135 S.E., 473; 142 S.C. 375; 140 S.E., 804. Admissions of agent during agency binding on principal: 82 S.C. 465; 64 S.E., 232; 72 S.C. 120; 51 S.E., 540; 1 E11. Evid., Sec. 252. Proof of documents does not infringe on Section 708 of the Code: 1 Code 1922; 106 S.C. 267; 91 S.E., 295. Trusts in personal property may be established by parol: 74 S.C. 246; 54 S.E., 372. Liability of executors joined: 26 R.C.L., 763, 764, 765; 1 Perry on Trusts, 6th Ed., 262, 263; 1 Rice's Eq., 154; 9 S.C. 460. If trustee confides his duty to another he is personally responsible: 1 Perry on Trusts, 6th Ed. Secs. 404, 415, 417, 418; 15 S.C. 164.
December 30, 1930. Opinion of the Court was delivered by
This is an action by the plaintiff Mary Jane Waters Gibert, daughter of James A. Waters, deceased, and her five minor children against the executor of the will of Nancy M. Waters and the administratrix of the estate of Samuel E. McFadden, deceased, who were the executrix and executor of the will of James A. Waters, and trustees under it of a certain fund out of his estate, allotted to Mary J.W. Gibert, subject to certain trusts, for the recovery of $2,825.00, with interest on $1,425.00 of said sum from October 23, 1925, at 7 percent. per annum, payable annually, and with interest on $1,400.00 of said sum from May 20, 1924, at 7 percent. per annum, payable annually.
The action appears to have been treated as an action at law, and will be so considered, although it might well have been considered as one in equity for an accounting of the trust fund.
The case was called first before his Honor, Judge Ramage, then acting as special Judge (now Circuit Judge), where the defendants demurred to the complaint upon the ground that the children of Mrs. Gibert had no interest in the case. The demurrer was overruled by Judge Ramage, and his order is the basis of an exception. It may be dismissed summarily, for the reason that multiplicity of parties is no valid ground of demurrer.
The case was later tried before his Honor, Judge Johnson and a jury; the trial resulted in a verdict in favor of the plaintiffs against both defendants for $3,466.15, upon which judgment has been entered, and from which the defendant J.L. Glenn, executor of the will of Nancy M. Waters, has alone appealed.
The undisputed facts are these:
James A. Waters died May 12, 1909, leaving a widow, Nancy M. Waters, and three children by a former marriage, the plaintiff Mary Jane Waters, Brice McD. Waters, and Chalmers E. Waters; the plaintiff at that time was unmarried, but at some time during the year, prior to May, 1910, she was married to J.B. Gibert.
James A. Waters left a will which was probated on May 15, 1909, in the Court of Probate of Chester County.
Items 9 and 10 of the will are as follows:
"Item Nine: All of the rest, residue and remainder of my estate, real, personal, and mixed, I hereby direct my executors, hereinafter named to convert into money at the earliest practicable moment. When the same has been converted into money, I hereby give, devise, and bequeath the same, one-fourth thereof to my wife, Nancy M. Waters; one-fourth thereof to my son, Brice McD. Waters; one-fourth thereof to my son, Chalmers E. Waters, and one-fourth thereof to my daughter, Mary Jane Waters.
"The one-fourth thereof, however, hereby bequeathed unto my daughter, Mary Jane Waters, is to be held by my personal representatives, hereinafter named, in trust, they to invest the same on good collateral (real estate mortgages preferred), and to pay the interest or income from said mortgages or collateral annually to my said daughter, Mary Jane Waters, for her support and maintenance. Should my daughter, Mary Jane Waters Marry, and should she marry a worthy and deserving man, who is a capable business man in the opinion of my personal representatives hereinafter named; then they, in their discretion, are to have the right to turnover unto the said Mary Jane Waters the corpus or the principal of the money so left her in the manner above named, to be handled by my personal representatives as herein above stated.
"Should my said daughter, Mary Jane Waters, however, not marry a man who is provident, frugal, and competent to handle money, then I direct my personal representatives, hereinabove named, as Trustees for my said daughter, Mary jane Waters, to invest said money as hereinabove stated paying over to her only the income therefrom.
"Should my daughter, Mary Jane Waters, die without children surviving her, and should the moneys hereby bequeathed to her in this paragraph not be turned over to her before her death, then at her death my personal representatives shall divide said money in equal shares among the children of my son, Brice McD. Waters.
"Item Ten: I hereby nominate, constitute, and appoint my wife, Nancy M. Waters, the Executrix, and my attorney, Saml. E. McFadden, the executor, of this my last Will and Testament, hereby requesting said Executor to Co-operate jointly with my Executrix in the administration and execution of this my last Will and Testament, and that he do any and all things looking forward to the best interests of my estate, and of my wishes, as herein above expressed."
Nancy M. Waters and S.E. McFadden, the attorney of the testator, were appointed Executrix and executor of the will. They duly qualified and jointly entered upon the discharge of the duties of their trust. Thereafter the following sums of money were paid to Mrs. Gibert, prior to the final settlement, May 26, 1910:
June 12, 1909 ...................................... $ 40.00 Dec. 4, 1909 ....................................... 25.00 Feb. 5, 1910 ....................................... 200.00 Mch. 3, 1910 ........................................ 75.00 May 20, 1910 ........................................ 50.38 ------ Total ............................................ $390.38 On May 16, 1910, preparatory to a final settlement, the executrix and the executor filed a final return of the estate, from which it appeared that the distributive share of Mrs. Gibert was $3,279.97; and on the same day they took from Mrs. Gibert a receipt as follows:"$3,279.98 Chester, S.C. May 16, 1910.
"Received this day of Nancy M. Waters, Executrix, and Saml. E. McFadden, Executor, respectively, of the estate of James A. Waters, deceased, Thirty-Two Hundred Seventy-Nine and 98/100 Dollars, in full settlement of my distributive share in the final distribution and settlement of the estate of James A. Waters, deceased, by his said personal representatives, as shown by the first and final return of said Nancy M. Waters, Executrix, and Saml. E. McFadden, Executor, of the estate of said James A. Waters, deceased.
"Witness my hand and seal, the day and date herein above written.
M.J. Waters Gibert."
"Witness: "Mary G. Sledge."
On May 26, 1910, the personal representatives, with receipts from all of the legatees, had a final settlement in the Court of Probate, and received final discharge.
There is evidence tending to show that, notwithstanding this receipt, Mrs. Gibert received no part of said fund except the sum of $390.38 previously paid to her as above stated; that the receipt was signed in the office of McFadden at a meeting of all the parties interested in the estate; that at the time of the signing of the receipt no money or securities of any kind were turned over to Mrs. Gibert; that on the occasion of that meeting Mrs. Waters stated that she wanted twelve months' time to think about it before she turned over Mrs. Gibert's money.
The contention of the defendants was that if not actually paid to her, it was constructively so paid by reason of her allowing the fund to remain in the hands of McFadden as her agent for investment, and that in this way the duties of Mrs. Waters and McFadden, as personal representatives and as trustees were fully discharged; that thereafter the fund was held by McFadden as the agent of Mrs. Gibert, and that his estate was alone responsible for it, which it is admitted was wasted and entirely lost by McFadden.
A circumstance relied upon to sustain this theory is the retention of the fund by McFadden alone, and the payment by him to Mrs. Gibert of the interest regularly nearly up to the time of his death. Opposed to this theory is the evidence tending to show that Mrs. Waters considered the fund as still trust funds, and not only subject to but actually under her control by the terms of the will; that she constantly and consistently refused to turn the fund over to Mrs. Gibert, exercising the discretion vested in her by the will to determine whether it was safe to do so on account of the ability of her husband. In fact, it was entirely proper under the terms of the will for her to withhold payment to Mrs. Gibert until she and McFadden became satisfied that the man she had so recently married (about a month previously) was "provident, frugal and competent to handle money"; a strong verification of the statement of Mrs. Gibert that no money passed with the receipt.
It is assumed that further payment of $64.60 was made to Mrs. Gibert in order to balance the account:
Share ........................................ $3,279.98 Payments ..................................... 390.38 _________ $2,889.60 Trust fund .................................... 2,825.00 _________ Balance .................................... $ 64.60The salient issues in the case were whether Mrs. Gibert actually received the sum of money indicated by her receipt, and, if so, whether she committed it to McFadden as her agent for investment. Those issues were fairly presented by the presiding Judge to the jury. Their verdict in favor of the plaintiffs necessarily means that she did not do either of these things, but that the sum due her remained in the hands of the personal representatives as trustees under the will. There was evidence tending to show that both personal representatives participated in the custody and control of the fund, and if so they must be held jointly liable for its loss.
The question to be considered is whether upon the trial of the case there were such errors as are assigned sufficient to require a reversal of the judgment. It is tedious, though necessary, to consider the several assignments of error contained in the seventeen exceptions filed by the appellant: Exceptions 1 and 2 have been considered hereinbefore and are overruled.
Exception 3 complains that Brice Waters was allowed to testify to statements made by Nancy M. Waters as to the disposition of the legacy of Mrs. Gibert; the ground of the alleged error is that the witness was the father of the children who were named as contingent legates; that the admission of his testimony was a violation of Section 708 of the Code. The exception is objectionable in not setting forth the testimony objected to. But, aside from this, the witness, as the father of the contingent legatees, had no such interest in the result of the suit as would bar him from testifying to a communication between him and Mrs. Waters who was dead at the time of the examination. Sullivan v. Latimer, 38 S.C. 158, 17 S.E., 701.
Exception 4 is objectionable in not setting forth the testimony objected to. The Court cannot be expected to grope through the record to find testimony that would answer the general statement in an exception. Nevertheless, we have gone through the testimony of Mrs. Chalmers and find nothing in it upon this particular point further than tending to show that, notwithstanding the receipt of Mrs. Gibert and the final discharge of May 26, 1910, Mrs. Waters considered the money as still in the hands of the personal representatives as trustees, a vital issue in the controversy. Why that could not be established by parol we do not comprehend.
Exception 5. The same observations are applicable to this exception as above made in reference to Exception 4.
Exception 6. The same.
Exception 7. The action was against the estate of McFadden as well as against the estate of Mrs. Waters. The statement was certainly admissible against the estate of McFadden even if made to the husband of Mrs. Gibert, who doubtless was acting for her, or if made to an entirely disinterested person. There was evidence tending to show that Mrs. Waters participated in the continuing trust by both herself and McFadden, and his declarations in the common enterprise would have been admissible against both.
Exception 8. For the same reason the letters of McFadden were admissible.
Exception 9 will not be considered, for the reason that the objectionable testimony is not set forth in the exception.
Exception 10. The same.
Exception 11. It does not seem possible that the remark made by the presiding Judge was in the least calculated to convey to the jury his impression of the vital issue of the case, whether the personal representatives continued to hold the fund as a trust fund under the will. He was not charging the jury, but was discussing the admissibility of the McFadden letter, which indicates a continuance of the trust, and in connection stated that there was evidence tending to show that the personal representatives wished further time to decide whether the fund should be turned over to Mrs. Gibert. There was abundant evidence of this, undisputed, and we see no error in his Honor's referring to the fact as justification for the admission of the McFadden letter.
Exception 12. The testimony bore directly upon the vital issue of a continuance of the trust, and was therefore admissible.
Exception 13 will not be considered, for the reason that the objectionable evidence is not set forth in the exception.
Exception 14. Taken in connection with the very full and clear charge of the Judge which is set out below, there could have been no apprehension on the part of the jury that his Honor assumed the existence of the very material issue clearly presented. He said:
"It is conceded by all parties that Nancy M. Waters and Samuel E. McFadden were appointed executors of the will of James A. Waters, deceased, and that they did qualify as executors of that will. No question about that, as I take it, from any circumstances in the case. The plaintiffs in the case go further, however. They state they not only did that, but they also became trustees under that will. The defendants say, `No, we didn't; we became executors or qualified as executors, without accepting the trust imposed upon us by virtue of the executorship or in the trusteeship.' And therefore, one of the first questions for you to answer is, Who is right? Whom does the evidence and the law say is right about it? Did Mrs. Nancy Waters and Samuel McFadden accept the trusteeship as well as the executorship in this case? If you answer that question `No,' if you conclude from the evidence that they were simply executors, why you wouldn't have to pursue that angle of it, certainly so far as the defendant Glenn is concerned, or as to either of them, as far as that is concerned. But if you should conclude that they did accept the trusteeship, both of them, then you would go a step further and inquire — Did Mrs. Waters, either as co-trustee of McFadden, constitute him her agent, and did the plaintiff suffer, as the result of any act of McFadden's? Or, second, if she didn't create him her agent, did she, Mrs. Waters, after accepting the trusteeship, if you should conclude that she did accept it, did she, by her act — by any act of hers, place the property in question, or the fund in question, in the sole possession and control of her co-trustee, and did the plaintiff, as a result thereof, lose? If she did, Mrs. Waters would be responsible for it."
Exception 15. We see no error in the charge excepted to.
Exception 16 and 17 are fully covered by what has been said.
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.
MR. ACTING ASSOCIATE JUSTICE GRAYDON dissents.