Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WALLACE v. TIMMONS

February 6, 1958

W. LEWIS WALLACE, ANCILLARY RECEIVER FOR SOUTH CAROLINA, FOR KEYSTONE MUTUAL CASUALTY COMPANY OF PITTSBURGH, PENNSYLVANIA, DISSOLVED, APPELLANT,
v.
EVA MCDONALD TIMMONS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF WILLIAM R. TIMMONS, RESPONDENT.



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.

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.

In our opinion sections 19-473 and 19-474 do not apply to the present case. They have reference to the claims of creditors, and relate to debts of the testator payable from his estate. The complaint alleges that the monies collected by the decedent constituted a trust fund. For the purposes of the demurrer that is to be taken as true. Whether or not a trust relationship as to these funds did in fact exist can be determined when the case is tried upon its merits.

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.