Kennedy v. Adickes

Citations

• 37 S.C. 174
• 15 S.E. 922
• 1892 S.C. LEXIS 9

Syllabus

<p>1. Administration Bond—Action—Sureties.—It is in accordance with old practice for distributees to call an administrator to account without making the sureties on his bond parties to the proceeding, and then sue at law the sureties on the administration bond for the amount of their decree against the principal; but the modern and approved practice is to implead the sureties in the original suit for accounting.</p> <p>2. Ibid..—Ibid.—Ibid.—Facts.—An action against the surety on an administration bond, to recover the amount of a decree rendered against their principal on his accounting, is an action at law, and, therefore, findings of fact in such case by the Circuit Judge, to whose decision the cause was submitted without a jury, cannot be considered on appeal.</p> <p>3. Account Surcharged and Falsified—Restatement.—An account being-surcharged and falsified in sundry items, a restatement of the account on the same principles as before, supplying the items proved and omitting those disproved, with the necessary incidental changes in interest and commissions, is proper.</p> <p>4. Administration—Purchase for Distributees—Sureties.—Cotton sold by administrators under order of the ordinary, was bid in by the administrators under agreement with the distributees, without notice to the surety on the administration bond, that the administrators should bid off this cotton, and all of the distributees-would “share equally in the loss or profit on said cotton, by holding it for a better time to soli, according to each one’s interest in said estate.” Held, that the distributees could not recover against the surety the misappropriated proceeds of the resale of this cotton, as the agreement made the cotton the property of the distributees on its purchase, and, moreover, was such an interference with the administrators’ duty as wrought a discharge of the surety.</p>