Summary
In Davis v. Singleton, 259 N.C. 148, 130 S.E.2d 10 (1963), our Supreme Court held that a complaint alleging the administratrix of an estate failed to properly distribute the estate to a rightful beneficiary was a matter involving the administratrix in her official capacity, and thus, the administratrix was required to be made a party not only in her individual capacity, but also in her capacity as administratrix.
Summary of this case from State ex Rel. Pilard v. BerningerOpinion
Filed 27 March 1963.
1. Courts 9 — Where one Superior Court judge sustains a demurrer another Superior Court judge is without authority to overrule the demurrer even after the complaint has been amended when the amendment, though adding evidentiary details, adds nothing to the basic statement of plaintiff's cause of action.
2. Wills 67; Executors and Administrators 36 — Action held one to surcharge and falsify account of executrix. A suit alleging that testator left his personal property one-half to plaintiff and one-half to defendant, that defendant was named executrix that defendant's final account omitted funds from a certain bank account, and that defendant had converted the funds in the account to her own use, without paying plaintiff her one-half share of such funds, is held to state a cause of action to surcharge and falsify the account of the executrix, and demurrer was properly sustained in an action against the executrix in her individual capacity.
3. Appeal and Error 2 — The Supreme Court will take notice ex mero motu of the failure of the complaint to state a cause of action.
APPEAL by defendant from Fountain, S.J., August 1962 Term of NASH, docketed and argued as Case No. 255 at the Fall Term 1962.
Spruill, Thorp, Trotter Biggs for plaintiff appellee.
Rodman and Rodman for defendant appellant.
PARKER, J., dissenting.
HIGGINS, J., joins in dissent.
Civil action to recover a legacy. Defendant appeals from the order overruling her motion for a change of venue and demurrer ore tenus to the amended complaint. This case was before the Court at the Spring Term of 1962 upon defendant's appeal from the denial of her motion, made pursuant to G.S. 1-83 and 1-78, to remove the case to Beaufort County for trial. The opinion in the first appeal appears in 256 N.C. 596, 124 S.E.2d 563, where the original complaint is set out in full. Briefly it alleged the following facts:
Plaintiff and defendant are the half-sisters of C. T. Cherry, deceased. In his last will, probated in Beaufort County, Cherry named defendant as his executrix. He gave one-half of his entire estate to plaintiff and one-half to the defendant for the term of their natural lives with remainder "to the descendants of the body" of said sisters. If either sister should die without leaving such descendants, the property which "would have gone to the descendants of said half-sister, shall go absolutely in fee simple to the heirs of said half-sister. . . ." At the time of his death on August 17, 1959, C. T. Cherry had on deposit in the Bank of Washington at Washington, North Carolina, the sum of $9,280.74. The account was carried in the name of C. T. Cherry or Sadie Cherry Singleton, but it was the sole property of Cherry. Following the death of Cherry and the administration of his estate by the defendant as executrix, the defendant appropriated all the funds in said bank account to her own use and refused to pay over to the plaintiff one-half of the account to which plaintiff contends she is entitled under the will. Plaintiff prayed that she "recover of the defendant the sum of $4,640.37, with interest thereon" from the date of the filing of her final account as "Administratrix of the Estate of Claud T. Cherry."
The former appeal involved only a question of venue. It was held that plaintiff had sued defendant only as an individual and the order of the Superior Court denying the motion of the defendant to remove the case to Beaufort County was affirmed. The Court, speaking through Bobbitt, J., said: "Plaintiff's action is to recover as beneficiary under Claud T. Cherry's will. Unquestionably, if she had instituted such action against defendant as executrix or as administratrix of the estate of Claud T. Cherry, such action, whether maintainable or not, would have been an action against executrix or administratrix in her official capacity. . . Suffice it to say, plaintiff, in this action, has not sued such personal representative." That decision eliminates any question of venue on this appeal. However, the opinion specifically pointed out: "Whether the complaint alleges facts sufficient to constitute a cause of action against defendant, individually, is not presented by this appeal."
When the case was returned to the Superior Court the defendant demurred to the complaint on the ground that the personal representative is the only person entitled to maintain an action to recover assets of the estate of Claud T. Cherry. At the May Term 1962, Judge M. C. Paul sustained the demurrer but allowed plaintiff to amend her complaint as provided by G.S. 1-131. Thereafter plaintiff filed an amended complaint in which she added the following allegations to those previously set out in the original complaint:
At the time of his death, C. T. Cherry owned seventeen acres of land in Beaufort County. Neither this land nor the bank account in the Bank of Washington was listed as an asset in the final account which defendant filed as executrix on October 14, 1960. All debts and claims against the estate, as well as the costs of administration, have been paid in full. Defendant's final account showed that her disbursements exceeded receipts by $562.50 which she paid from the bank account in the joint names of the defendant and the deceased. The costs of administration amounted to $225.00. Deducting this amount, there remains in the hands of the defendant a net balance of $9,055.74. (It would seem that $562.50 should have been the amount deducted.) Defendant has wrongfully converted to her own use plaintiff's one-half of this sum to which plaintiff is entitled under the will of C. T. Cherry. Plaintiff is entitled to judgment in the amount of $4,527.87 with interest from October 14, 1960.
After the filing of the amended complaint defendant again moved for a change of venue on the ground that, if the complaint stated a cause of action, it was against the defendant in her representative capacity as executrix of C. T. Cherry and should be moved to Beaufort County under the provisions of G.S. 1-78 and 1-83; and, if not, that Judge Paul's order sustaining the demurrer should stand.
At the August Term 1962, Judge Fountain overruled defendant's motion. The defendant then demurred ore tenus to the amended complaint on the same ground set forth in the demurrer before Judge Paul. Judge Fountain overruled the demurrer ore tenus. Defendant appealed, assigning as error the denial of her motion for a change of venue and the overruling of her demurrer ore tenus to the amended complaint. In this Court the defendant renewed the demurrer ore tenus made before Judge Fountain.
For the purpose of testing the sufficiency of the complaint, the demurrer to the original complaint and the demurrer ore tenus to the amended complaint admitted the following facts:
C. T. Cherry devised and bequeathed his entire estate to plaintiff and defendant in equal shares for life and named defendant his executrix. At the time of his death Cherry was the sole owner of a bank deposit in the amount of $9,280.74 which was carried in the name of C. T. Cherry or Sadie Cherry Singleton, and the funds in this account passed under his will at his death. Following the filing of her final account as executrix defendant appropriated all of the net funds in the bank deposit to her own use and refused to deliver over to the plaintiff her share.
On these allegations Judge Paul sustained the demurrer; Judge Fountain overruled it. The amended complaint, while amplifying these allegations with evidentiary details, dates, and figures, added nothing to the basic statement of plaintiff's cause of action.
Judge Fountain was, therefore, without authority to overrule the demurrer; he was bound by Judge Paul's prior ruling. Wall v. England, 243 N.C. 36, 89 S.E.2d 785; Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82. However, since this case has been here once before, we deem it proper to discuss it further.
The question raised by the demurrers is not the determinative question in this case. Here, the individual who has allegedly converted an asset of the estate which rightfully belongs to the plaintiff is the executrix who did not list it in her final account. However, plaintiff has not sued her in her official capacity but, only as an individual.
If the bank still retained the money, plaintiff could not maintain an action for it; such an action could only be maintained by Cherry's personal representative. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253. Mayo v. Dawson, 160 N.C. 76, 76 S.E. 241. This would be true even though the executrix had filed her final account. The fact that an administrator or executor has filed his final account does not deprive him of his right to receive or to recover an asset of the estate thereafter discovered. Foil v. Drainage Com'rs., 192 N.C. 652, 135 S.E. 781; Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562; Best v. Best, 161 N.C. 513, 77 S.E. 762. It is likewise well settled that the filing of a final account does not discharge a personal representative of his trust as to property of the estate remaining in his hands. King v. Richardson, 136 F.2d 849.
The purpose of this action, in its final analysis, is to secure a proper accounting and settlement of the estate of C. T. Cherry. It is in the nature of a bill in equity to surcharge and falsify the final account of the executrix, and it may be brought by an heir or legatee. State v. McCanless, 193 N.C. 200, 136 S.E. 371; Rudisill v. Hoyle, 254 N.C. 33, 118 S.E.2d 145; Thigpen v. Trust Co., 203 N.C. 291, 165 S.E. 720. Obviously the executrix is the party defendant to such an action. Vollers Co. v. Todd, 212 N.C. 677, 194 S.E. 84; Davis v. Davis, 246 N.C. 307, 98 S.E.2d 318.
The query presented by this case is: When an executor has filed his final account which omits a legacy, must the legatee, in an action to recover it from the executor, first surcharge his final account? The answer is YES.
"To surcharge is to allege an omission; to falsify is to deny the correctness of certain of the items rendered." Warner Robins Sun v. Clary, 98 Ga. App. 500. We find a further and more complete definition in 2 Story's Equity Jurisprudence, (14th Ed.) sec. 701, where it is said:
"These terms, `surcharge' and `falsify', have a distinct sense in the vocabulary of Courts of Equity a little removed from that which they bear in the ordinary language of common life. In the language of common life we understand `surcharge' to import an overcharge in quantity, or price, or value, beyond what is just, correct, and reasonable. In this sense it is nearly equivalent to `falsify'; for every item which is not truly charged as it should be is false, and by establishing such overcharge it is falsified. But in the sense of Courts of Equity these words are used in contradistinction to each other. A surcharge is appropriately applied to the balance of the whole account, and supposes credits to be omitted which ought to be allowed. A falsification applies to some item in the debits, and supposes that the item is wholly false, or in some part erroneous. This distinction is taken notice of by Lord Hardwicke, and the words used by him are so clear that they supersede all necessity for further commentary. `Upon a liberty to the plaintiff to surcharge and falsify,' says he, `the onus probandi is always on the party having that liberty; for the court takes it as a stated account and establishes it. But if any of the parties can show an omission for which credit ought to be, that is a surcharge; or if anything is inserted that is a wrong charge, he is at liberty to show it, and that is a falsification. But that must be by proof on his side. . .'"
It would be impossible for plaintiff to recover in this action without, in effect, surcharging the final account of the executrix which is prima facie correct. Bean v. Bean, 135 N.C. 92, 47 S.E. 232. Plaintiff's claim to one-half of the bank deposit for which she has sued is based solely upon the provision in the will of Cherry which makes her one of his two legatees. Obviously she cannot recover any part of the fund unless the deposit is an asset of his estate.
This action calls into account defendant's distribution of the estate and therefore involves her official acts as executrix. Montford v. Simmons, 193 N.C. 323, 136 S.E. 875. This cannot be done in an action to which the executrix is not a party and making the individual who also happens to be the personal representative a party will not suffice.
In Clark v. Schindler, 43 Ind. App. 269, 87 N.E. 44, the auditor of Marion County, alleging that the property of S had not been listed for taxes from 1893 through 1900, brought an action to set aside the final account of M (Margret Schindler) executrix of S. M. had distributed the estate to the heirs of whom she was one. The statute authorized such a proceeding but required that the executor or administrator of the estate must be made a party defendant. M as executrix was not made a party. In dismissing the action in this, and other grounds, the court said: "Margaret Schindler, as executrix, is not made a party. Margaret Schindler, as heir, may be the same person, but they are not sued in the same right and for the purposes of this action are different persons . . . In the failure to make the executrix a party there was a nonjoinder of parties."
Of course, an action against an executor or administrator for failure to perform his official duties or for a conversion of estate funds is also a claim against him personally and, if sustained, a personal judgment should be entered against him. "A judgment against an administrator ascertaining and directing the payment of a final balance against him in a suit for an accounting and settlement of the estate is a judgment against him personally." 21 Am. Jur., Executors and Administrators, Sec. 966.
The complaint affirmatively discloses that the plaintiff has no cause of action against the defendant in her individual capacity. This is a defect upon the face of the record proper of which the Supreme Court on appeal will take notice and ex mero motu dismiss the action. Fuquay Springs v. Rowland, 239 N.C. 299, 79 S.E.2d 774; Skinner v. Transformadora, S. A., 252 N.C. 320, 113 S.E.2d 717. The action is dismissed for failure of the complaint to state a cause of action.
Reversed.