The opinion of the court was delivered by: E.H. Henderson, Acting Associate Justice.
February 6, 1958.
The exceptions are quite general and indefinite, and do not comply with rule 4, section 6, of the Court. However, we have decided to consider them, since they attempt to present meritorious assignments of error.
As the question in this case is whether the trial judge was correct in sustaining the demurrer and dismissing the complaint, it is necessary that we see just what are the allegations of the complaint, and what is embraced in the demurrer.
The complaint alleges that the plaintiff is the ancillary receiver in this state for the Keystone Mutual Casualty Company, a Pennsylvania corporation now dissolved; on March 13, 1944, William R. Timmons, now deceased, and the Keystone Mutual Casualty Company entered into an agency agreement, a copy of the agreement is attached and made a part of the complaint; pursuant to the agreement William R. Timmons collected large sums of money for the Keystone company, and that under the terms of the agreement he became the trustee of such monies for the benefit of the company; Mr. Timmons died testate on June 22, 1948, leaving an estate valued at more than $500,000, with his wife, the defendant Eva McDonald Timmons, as executrix and sole beneficiary; on July 25, 1948, Mrs. Timmons was appointed executrix of the estate; at the time of the death of Mr. Timmons he had in his possession $25,504.72 belonging to the Keystone company; that this sum was impressed with a trust under the agency agreement; the decedent had on deposit in three banks the sum of $61,638.34, in accounts denominated "W.R. Timmons, Agency", with which accounts the sum held by him as trustee was commingled; and the three banks have turned over the deposits to the defendant as executrix.
That on September 13, 1951, the plaintiff filed a claim against the decedent's estate in the amount of $25,504.72; the claim was not filed within the time required by section 19-474 of the code, and a hearing on it was never had, and it was never honored or refused; the estate has never been settled; that the plaintiff is entitled to an accounting respecting the trust funds, and to have them held for disposal as he shall direct; and that to allow the defendant to keep the funds would be an unjust enrichment.
One paragraph of the attached agreement is as follows: "The agent agrees that all money or securities received or collected by him shall be held by him in trust for the benefit of the Company, and remitted to the Company in strict accordance with the rules and regulations of the Company and the terms of this agreement."
The prayer is for an accounting; that the defendant be required to pay over the trust funds to the plaintiff; and that the plaintiff have judgment against the defendant, individually and as executrix, in the amount of the trust funds.
The suit was commenced on January 30, 1956.
The demurrer of the defendant was upon the following grounds: That it appears upon the face of the complaint that the claim was barred by sections 19-473 and 19-474 of the 1952 code, as it was not filed with the executrix within the required time; that it was barred by Section 10-143 of the code, as the action was not brought until January 30, 1956, a period of more than seven years after the death of William R. Timmons; that it was not asserted against the defendant in her capacity as executrix within the time limit of section 19-474 of the code, that it was not asserted against the defendant individually until January 30, 1956, a period of more than seven years after the death of Mr. Timmons, and is barred by section 10-143; and that another action, in the Probate Court for Greenville County, is pending between the same parties for the same cause.
In his order the special judge, Honorable J. Davis Kerr, sustained the demurrer on three grounds: (1) That the complaint does not allege that Mrs. Timmons, as an individual, received any of the assets composing a trust fund; (2) that the claim is barred by sections 19-473 and 19-474 of the code, which he held to be non-claim statutes; and (3) that it is barred by laches.
The first ground stated above was not included in the respondent's demurrer, and consequently is not an issue in the case.
As to the second ground, the appellant conceded at the hearing that the claim against the respondent in her capacity as executrix was barred, as it was not filed within the time provided by section 19-474. The question remains as to whether it was barred as against the defendant, individually, as distributee.
For the purposes of the demurrer the appellant is a cestui que trust and not a creditor. During the life-time of Mr. Timmons the trust fund was not liable for his debts. The character or ownership of the fund did not change upon his death. It did not become a part of his estate, or ...