Opinion
(December Term, 1859.)
1. Where an administrator holds a distributive share without closing up the estate by a settlement and payment of the balance struck, the remedy of the distributee can only be barred by the common-law presumption arising from the lapse of twenty years.
2. Where an administrator files a settlement setting out the admitted balance, and the matter is closed upon that footing, by a receipt in full of such balance, if the distributee afterwards seeks to impeach the settlement he must do so within ten years or he will be barred.
3. The common-law presumption does not begin to run against one until he becomes of age.
DEBT on an administrator's bond, tried, before Ellis, J., at Spring Term, 1858, of EDGECOMBE.
B. F. Moore for plaintiff.
W. B. Rodman for defendants.
The plaintiff declared on a bond executed by Benoni M. Wilkerson, the defendant's testator, as administrator of one Winefred Wilkerson, in the sum of $500, dated in 1833, the execution of which is admitted.
Winefred Wilkerson resided in the county of Pitt, and died intestate in 1833, and at November Term, 1833, of the county (126) court of that county he said Benoni M. Wilkerson was duly appointed her administrator, and executed the bond declared on. The next of kin of the said Winefred were her four children, viz., the said Benoni M., the relator, Abner C. and Cockburn Wilkerson, and Nancy Brown, wife of one Lemmon Brown, and her three grandchildren, viz., John Wilkerson and William Wilkerson, the only children of John Wilkerson, a deceased son, and William W. Stringer, an only child of ___ Stringer, daughter of the said Winefred. The said John, the elder, and Mrs. Stringer both died in the lifetime of their mother. All the next of kin lived in the State at the time of Mrs. Wilkerson's death.
The said Cockburn Wilkerson, Lemmon Brown and wife, and William W. Stringer afterwards left the State in or before 1837, and have remained away every since. The latter was a minor when he left the State, and has not been heard of in twenty years.
John and William Wilkerson both died intestate, during their infancy, and at November Term, 1843, of Edgecombe County Court the said Abner C. Wilkerson was duly appointed administrator on their respective estates.
The said Benoni returned an inventory and an account stated to February Term, 1834, of Pitt County Court, also an account current to February Term, 1836, of said county court.
The account current exhibits a balance in his hands for distribution of $206.86, principal and interest to 1 February, 1836, after retaining for commissions the sum of $32.80, as charged therein.
The inventory omits the sum of $80 in money received by him from one Nancy Brown on 30 November, 1833, as of the estate of his intestate; also, a bed and furniture belonging thereto, worth $25, which he purchased at his own sale, nor did he charge himself with either in the account current.
Said Benoni M. paid Lemmon Brown and wife $34 on 7 January, 1837, and took from them a receipt, of which the following is (127) a copy:
Received 7 January, 1837, of Benoni M. Wilkerson, administrator of Winefred Wilkerson, $34, in full of our share of said estate as heirs at law. LEMMON BROWN. NANCY BROWN. Test: WM. C. LEIGH.
On the same day Brown and wife executed a refunding bond under their hands and seals, which recites that Benoni M. Wilkerson had paid the $34 as their distributive share of the estate of Winefred Wilkerson, and that the payment was in full of all demands against the said Benoni M. as administrator of Winefred Wilkerson. On 1 April, he paid, Abner C. Wilkerson $41 as his distributive share, and took a receipt from him acknowledging the payment to be in full of all demands, and releasing all right, title and interest in and to said estate. This was signed Abner C. Wilkerson.
On 24 February, 1844, he paid him, as administrator of John and William Wilkerson, $55.90, and took from him a receipt acknowledging the payment, releasing and discharging the said Benoni M. from all claim on him as administrator in respect of the distributive shares of the said William and John. (Signed) Abner Wilkerson.
Said Benoni M. Wilkerson died in January, 1855, and the defendants are his executors.
The relator, Abner C. Wilkerson, became administrator de bonis non of the said Winefred Wilkerson at May Term, 1856, of Pitt County Court, and commenced this action on 10 November in the same year, in the county court of Edgecombe. It was referred to a commissioner to state an account of the estate of Winefred Wilkerson, and he reported to May Term, 1857, of said court. The commissioners charges the said Benoni M. with everything that came to his hands as administrator, and the interest thereon to 30 May, 1857, and credits him with his disbursements made in discharging the debts of his intestate, and interest on the same to 30 May, 1857, and with the necessary (128) expenses of administration, including an allowance of commissions at the rate of 5 per cent on his actual receipts and disbursements, such commissions amounting to the sum of $12.81, instead of $32.80, as charged in the account current filed by him, February, 1836, leaving a balance to his debit of $720.85, making a distributive share thereof of $120.31. He then credits him with the several payments made to Lemmon Brown, and wife, and to the relator, Abner C. Wilkerson, in his own right as above stated, and the interest on each to 30 May, 1857; with $120.31 the full share of John and William Wilkerson, deceased, treating the receipt of their administrator for $55.90 as a release; also with the like sum of $120.31, being the said Benoni's own distributive share, leaving still a balance to his debit of $307.50, of which sum $141.07 is principal money; of which said balance of $307.50 the said Cockburn Wilkerson and William W. Stringer's distributive shares are each $120.31, Lemmon Brown's, in right of his wife Nancy, $44.70, for residue of his distributive share, and the relator's Abner C. Wilkerson, is $22.18, for residue of his distributive share.
It is agreed that if the plaintiff is entitled to judgment at all, and there is no presumption of satisfaction, or that presumption is rebutted, then that said report correctly states the amount due the several parties.
The defendants rely on the pleas of release, payment and accord and satisfaction, and contend that a presumption of a satisfaction arises from the lapse of time and other circumstances.
If the court shall be of opinion with the plaintiff, judgment is to be rendered in his favor for $500, the penalty of the bond declared on, to be discharged upon the payment of $307.50 to the relator as damages for the breaches assigned, of which sum $141.17 is principal, and to carry interest from 30 May, 1857, or for as much as the court shall think the relator entitled to recover by reason of the breaches of the condition of the bond, and for the costs of suit, including $15 to the (129) commissioner for taking account and making report; otherwise, judgments to be entered for defendants.
The court adjudged, on the foregoing case agreed, that plaintiff do recover the sum of 500, the penalty of the bond declared on, of the goods and chattels of the said testator, Benoni M. Wilkerson, in the hands of the defendants as his executors, and further, that the relator recover his costs of suit, to be taxed by the clerk, including an allowance of $15 to the commissioner for taking account and making report, the whole to be discharged, however, upon the payment to the relator of $300.57 as damages for the breaches assigned, of which sum $141.07 is principal money, and to carry interest from 30 May, 1857, and his cost of suit. From this judgment defendants appealed.
The bond of an administrator is a security for the performance of the trust reposed in him for and on behalf of the distributees. It follows that there can be no presumption of the payment or satisfaction of the bond, unless there is a presumption that the trust has been performed by payment of the distributive share, or that the right has been abandoned.
It is settled that the act of 1826, raising a presumption in ten years, does not apply, to legacies and distributive shares, while the trust remains unclosed and the relations of trustee and cestui que trust, by agreement of the parties, continues to exist. Salter v. Blount, 22 N.C. 218; McCraw v. Fleming, 40 N.C. 348; Cotton v. Davis, 55 N.C. 430.
In the latter case a distinction is taken between an estate and a right in equity, and it is held that where an administrator holds a distributive share, without closing up the estate by a settlement and payment (130) of the balance struck, the distributee has an estate in the fund, and his remedy can only be defeated by the common-law presumption, i. e., the lapse of twenty years. But where an administrator files a settlement, setting out the admitted balance, and the matter is closed upon that footing by a receipt in full of such balance, if the distributee afterwards, seeks to impeach the settlement on an allegation of fraud, or to surcharge and falsify the account, he is not considered as having an estate, but a mere right, which falls within the operation of the act of 1826, and will be presumed to have been abandoned or satisfied if nothing has been said or done in regard to it for ten years.
These cases, and those referred to in this discussion, put the subject of presumption from lapse of time on its true ground, and no further elaboration is called for.
In the application of the principles thus settled to the case under consideration there is error in the judgment rendered by the court below in several particulars.
1. Benoni M. Wilkerson, as administrator, filed his account in February, 1836, showing a balance of $206.86, and upon the footing of that account Brown and wife and Abner C. Wilkerson, two of the distributees, settled and received their respective shares, and executed receipts and refunding bonds. This was done more than ten years before the commencement of the present action. Consequently there was a presumption of an abandonment of their right to surcharge and falsify the account, and the distributive share of each is presumed to have been satisfied under the act of 1826.
2. Cockburn Wilkerson removed from this State about 1837. There is no evidence that he received the share apparently due to him by the account rendered by the administrator; but it was rendered in February, 1836, and the writ in this case issued November, 1856; so more than twenty years have elapsed, and the common law raised a presumption that this distributive share had been paid or satisfied in some way, or was abandoned, which presumption, is made for the sake of repose and to discourage "stale claims."
3. The only distributive share not disposed of is that of William (131) Stringer. He left the State in 1837, and was then under age, and the presumption did not begin to run as to him until he arrived at age. Consequently the plaintiff was entitled to recover in respect to his share. Seawell v. Bunch, 51 N.C. 195.
Upon the case agreed, the judgment of the court must be reversed and judgment entered for the penalty of the bond, the execution to be discharged by the payment of the amount of one distributive share, to wit, $120.31, with interest and the costs of the court below. Judgment for the costs of this Court in favor of defendants.
PER CURIAM. Affirmed.
Cited: Cox v. Brower, 114 N.C. 423.