Atlantic Savings Bank v. Rowland

The opinion of the Court was delivered by Mr. Justice Watts. This action was. commenced by the service of a summons and complaint, dated May 25, 1923, by the Atlantic Savings Bank, as administrator of the estate of H. A. Due, deceased, praying for instructions of the Court as to whether to pay a certain claim for $15,000 filed against the said estate by the Orphan Aid Society of the Jenkins Colored Orphanage, acting through D. J. Jenkins. The claimant and D. J. Jenkins, and the ultimate beneficiaries of the will (who are primarily interested in the outcome of the dispute), were all made parties defendant. The claim of the Orphan Aid Society was based on an alleged verbal contract with H. A. *16 Due to pay for the erection of a building for the “Poor Child Bread Company.” The issue in the case was whether the said claim should or should not be allowed. A general order of reference was taken, referring the case to F. K. Myers, Esq., master, to take testimony and to report the same, with his conclusions of law and fact. The master filed his report on April 19, 1924, finding that the claim was not supported in fact or in law, and recommending its disallowance. Thereafter the defendant, the Orphan Aid Society of the Jenkins Colored Orphanage, filed exceptions to the master’s report. These exceptions were heard before his- Honor, Judge Memminger, at chambers, who entered a decree dated June 17, 1924, sustaining the exceptions to the master’s report. This appeal has been taken from the said decree. The able decree of Judge Memminger, which the appellants complain of by the exceptions, will be reported. In our opinion the evidence supports the decree of his Honor, and, as this is a suit in equity on the merits, the appeal is from the findings of the Circuit Judge on the facts. It is incumbent on the appellants, therefore, to show that the decree of his Honor is against the weight of the evidence. Unless the appellants can demonstrate that the decree of- Judge Memminger is against the preponderance of the evidence, this Court will not disturb it. The evidence in the case was taken before the master. Under the law it is his duty to take all of the testimony offered and report it to the Court. Even if incompetent testimony was in evidence, as this was not a jury trial, but a trial before the judge, it is reasonable to suppose his Honor, in making his conclusions as to the-facts of the case, did not base his opinions upon anything but competent, relevant testimony. Leland v. Morrison, 92 S. C., 511; 75 S. E., 889, Ann. Cas., 1914B, 349. Kleckley v. Hook, 94 S. C., 62; 77 S. E., 735. Taylor v. Jackson, *17 92 S. C., 13; 75 S. E., 275. Simmons v. Pender, 124 S. C., 506; 117 S. E., 731. All the exceptions are overruled, and judgment affirmed. Mr. Chief Justice Gary and Mr. Acting Associate Justice Johnson concur. Mr. Justice Marion dissents. Mr. Justice Cothran did not participate.