February 18, 1902. The opinion of the Court was delivered by The question raised by this appeal is whether a sole distributee of an intestate estate can maintain an action against a person other than the administrator to recover the assets of the estate where there are no debts against the estate. We say this is the question, because the complaint alleges in express terms that the plaintiff is the sole distributee of the intestate's estate, and in the ninth paragraph further alleges that "no person other than the plaintiff and the said defendants are interested in said premises as owners or otherwise, and that said defendants have no claim thereto." The language just quoted, in effect, alleges that there are no debts against the estate, for if there are creditors they certainly would have an interest in said property.
As the appeal is from orders sustaining demurrers to the complaint, it will be necessary to refer to it. The complaint is as follows:
"For a firse cause of action:
"1. That Carry Whyte, born Poyas, died intestate on or about the 11th day of September, A.D. 1887, leaving surviving her as sole next of kin, heir at law and distributee, her daughter, Mamie F. Whyte, who has since intermarried with Orville J. Grant, and is the plaintiff in this action.
"2. That at the time of her death the said Carrie Whyte left property worth $1,100 or more, and no letters of administration were ever granted on her estate.
"3. That the said Mamie F. Grant was born on the 24th *Page 434 day of October, 1875, and at the time of her mother's death was a minor, to wit: of the age of twelve years.
"4. That on information and belief she alleges that the defendants, Joseph M. Poyas and Susan E. Mendenhall, born Poyas, the brother and sister of the said Carrie Whyte, deceased, illegally and without authority of law, took the property of this plaintiff, which she had inherited from her mother, Carry Whyte, and invested a part of it, to wit: the sum of $1,100, in the premises in the city of Charleston, State and county aforesaid, situate on the south side of Cooper street, and known by the number 67, and which are more fully described in the deed from John Brothers to Joseph M. Poyas and Susan E. Poyas (now Mendenhall), bearing date the 23d day of August, 1892, and recorded in the office' of the register of mesne conveyance for Charleston County in book H 21, p. 364. A copy of which is hereto annexed, marked `Exhibit A,' and made a part this complaint.
"5. That on the same day as the date of the above mentioned deed, Susan E. Poyas (now Mendenhall) executed a declaration of trust and attached the same to the said deed, and which is recorded along with it, whereby she declared that she held one undivided half portion of the said lot of land described in `Exhibit A,' in trust for the use and benefit of Marion E. Duc, Naomi C. Duc, Maud P. Duc and Arthur L. Duc; a copy of said declaration of trust is hereto annexed, marked `Exhibit B,' and made a part of this complaint.
"6. That said Marion E. Duc, Naomi C. Duc, Maud P. Duc and Arthur L. Duc, mentioned in the declaration of trust aforesaid, are illegitimate children of Carry Whyte, and they have no share in her estate.
"7. That the said real estate described in `Exhibit A' was bought by Joseph M. Poyas and Susan E. Poyas (now Mendenhall), for the sum of $1,100.
"8. That she is advised, and on information and belief alleges, that Joseph M. Poyas and Susan E. Mendenhall *Page 435 have held the premises described in `Exhibit A' with a resulting trust, for the use and benefit of this plaintiff.
"9. That there are no liens or incumbrances on the aforesaid premises appearing of record, and that no person other than the plaintiff and the said defendants are interested in said premises as owners or otherwise, and plaintiff alleges that said defendants have no claim thereto.
"For a second cause of action:
"1. That from the day of September, 1893, to the day of September, 1899, the said Joseph M. Poyas and Susan E. Mendenhall wrongfully and illegally have leased the said premises, and taken and collected rent for the use and occupancy of the said premises described in `Exhibit A' at the rate of $10 a month, to wit: as this plaintiff is informed and believes, the sum of $720, and kept the same to their own use and benefit.
"2. That the plaintiff being wholly ignorant of her rights, and confiding absolutely in the representations of her said uncle, Joseph M. Poyas, and her said aunt, Susan E. Mendenhall, that she had no rights in the premises, suffered them to receive and take the rent as aforesaid, and that no part of the said sum of money so paid as rent has ever been paid to this plaintiff.
"3. That only within the last few days, to wit: one month, has she learned her rights in the premises."
The grounds of demurrer to the first cause of action were as follows: "I. Because the plaintiff has not legal capacity to sue, in that she is not entitled, as matter of law, to the possession of the property claimed to have been left by and to belong to the estate of the intestate, Caries Whyte, and there is no resulting trust to her. II. Because the complaint does not state facts sufficient to constitute a cause of action, in that the plaintiff is not entitled, as matter of law, to the possession of the property claimed to have been left by and to belong to the estate of the intestate, Carrie Whyte, and there is no resulting trust to her."
The grounds of demurrer to the second cause of action *Page 436 were as follows: "I. Because the plaintiff has not the legal capacity to sue, in that she is not entitled, as matter of law, to the rents and profits of the property claimed to have been left by and to belong to the intestate, Carrie Whyte, and there is no resulting trust to her. II. Because the complaint does not state facts sufficient to constitute a cause of action, in that the plaintiff is not entitled, as matter of law, to the rents and profits of the property claimed to have been left by and to belong to the estate of the intestate, Carrie Whyte, and there is no resulting trust to her."
His Honor sustained the demurrers and dismissed the complaint for the reasons stated in his order, which will be reported.
The plaintiff appealed upon several exceptions, but it will not be necessary to consider them in detail, as they raise practically the question herein before stated, which we proceed to consider. The authorities cited by his Honor, the Circuit Judge, amply sustain the general doctrine that an action to recover the assets of an intestate's estate can only be maintained by his administrator. But the case of Huson v. Wallace, I Rich. Eq., I, makes an exception to the general rule, when there is a sole distributee and there are no debts of the state. This case has not been overruled; on the contrary, the doctrine therein announced has been recognized in subsequent cases, among which may be mentioned, Markley v. Singletary, 11th Riche. Eq., 401, and Richardson v. Cooley,20 S.C. 350 — the last mentioned case having been decided after the passage of the act entitled "An act to provide for the administration of derelict estates," discussed by the Circuit Judge. No case has been before the Supreme Court since that of Huson v. Wallace, involving the same facts, and what was said in subsequent cases must be construed with reference to the facts of the case in which the language was used.
Having reached the conclusion that the demurrer to the first cause of action should have been overruled, it necessarily follows that the Circuit Judge erred in sustaining the *Page 437 demurrer to the second cause of action. Under the allegations of the complaint, the plaintiff was the owner of the property left by her deceased mother. It was impressed with a trust in the hands of Joseph M. Poyas and Susie E. Mendenhall. The plaintiff, therefore, had the right to claim the property into which it was converted, as long as it could be identified.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed.