French v. Way , 93 S.C. 522 ( 1913 )

I cannot concur in the opinion of the majority of the Court. The statute that requires the settlement of the estate of Mrs. Elizabeth Clement, in the probate court of Anderson county, requires the settlement of the estate of Allen W. Clement in the probate court of Laurens county. Whose estate is being settled in this proceeding? To me it is manifest that it is primarily the estate of Allen W. Clement, and that with a very incomplete showing. Did Mrs. Way (the executrix of Allen) receive any property of Mrs. Elizabeth's estate? If not, then how can the probate court of Anderson county require an officer of the probate court of Laurens county to pay out a fund that she must administer under the control of the Laurens court. There is a peremptory order of the judge of probate of Anderson that Mrs. Way, as executrix, shall pay to D.C. French, executor, $5,139.13. It may be the estate of Allen owes some debts in Laurens, and if there be not enough for both, the debts ought to be prorated. It seems to me that French went into the probate court of Anderson and alleged a debt against the estate of Allen and got an order for Mrs. Way to pay over this amount, without any regard to the consequences to Mrs. Way or the other creditors of the estate of Allen. It is claimed that Mrs. Way stands in place of her husband. How? Under the old law she would have occupied this position. The executrix of Allen would have been entitled to administer the estate of Mrs. Clement. This has been changed by statute, and Mrs. Way had no right to the assets of Mrs. Clement.

I am of the opinion that Mrs. Way, not having any official connection with the probate court of Anderson county, was not answerable there, and not being a resident of Anderson county, could not be made answerable there unless it had been shown that she had assets of Mrs. Clement's estate and then only as executrix of her own wrong. Then the jurisdiction should have been confined to those assets. If those assets were insufficient, then as to the balance, the jurisdiction should have been transferred to Laurens county, where the other creditors of Allen could have been protected, and the statutory order of priority preserved. The statutory order of priority applies only to the executor and administrator and not to sheriffs or other officers, who may enforce the judgment. See Huger v. Dawson, 3 S.C. 328.

The high character of the lawyers engaged in this case (I do not know the parties) assures us that this proceeding is real and the contest is not feigned, but it opens the door very wide to outrageous evasions of the priorities in the settlement of estates. All that such an executor would have to do would be to submit to a judgment like this Anderson judgment, and then, by inaction, force other creditors to get judgment on their demands. The oldest judgment would have priority and the demands preferred by statute would lose their priority, even if they were not entirely lost.

For these reasons I can not concur.