Cook v. Jennings

Citations

• 40 S.C. 204
• 18 S.E. 640
• 1893 S.C. LEXIS 20

Syllabus

<p>1. Assets Descended — Payment by Heir — Presumption of Payment — Proof by Creditor. — In action for the settlement of a testator’s estate, a creditor came in under call of the court and presented a sealed note of testator’s wife, dated in 1868 and due in 1869, upon which the testator, who, as sole heir of his wife, had inherited an estate from her, endorsed a credit in 1888 of a payment made by him “as heir at law.” Held, that testator’s estate was liable for the payment of this note as a specialty debt; that the credit endorsed thereon by him prevented the presumption of payment, and that the presentation and proof of the claim was sufficient to entitle the creditor to a recovery.</p> <p>2. Foreclosure — Judgment for Deficiency. — A decree in foreclosure fixed the amount due, directed a sale of the mortgaged land, and a report on deficiency, with leave to plaintiff to issue execution therefor; and from this decree there was no appeal. Afterwards the mortgagor died, and after his death the land was sold, leaving a deficiency unpaid on the mortgage debt, which was duly reported to the court. Held, that this deficiency was not a judgment debt as of the date of the decree, and did not rank as a judgment in the distribution of the deceased mortgagor’s estate. Mr. Justice Pope dissenting.</p> <p>3. Homestead Not Claimed — Distribution.—Where personal property of a deceased debtor is sold by the executor without any claim by his widow (who constituted his surviving family) for its exemption under the homestead laws, and such widow, a party to this action, still makes no such claim, the proceeds of such sale must be applied as the other assets of the estate, and are not primarily applicable to a debt which alone could have defeated a claim of exemption if it had been made.</p> <p>4. Attorney’s Fee Not Claimed. — It is error in a Circuit Judge to provide for a fee to the attorney of an executor in action for the settlement and distribution of his testator’s estate, when