Opinion
(December Term, 1859.)
1. Where a declaration was made that an executor had fraudulently combined with others to run off and waste the assets in his hands, so as to defeat the collection of a judgment at law (the administrator of such executor being a party to the suit at the time of such declaration), it was Held not to be good ground of exception to the report of a commissioner directed to take an account of the assets of such executor in the hands of his administrator that no formal decree had been made against him, as administrator, at the time of the declaration.
2. Where a bill was filed against the representative of a fraudulent executor to subject his estate to the payment of a judgment at law, it was Held that such representative had no right, after the bill was filed, to pay other debts due by such executor of no higher dignity than that sought to be satisfied in this Court.
3. An administrator who pays a debt presumed, from lapse of time to have been paid, is bound, in a settlement of the estate, to show that such presumption is not true, but that the debt is in fact still unpaid.
(169) THE cause out of which this matter emanates ( Barnawell v. Threadgill, 56 N.C. 50) was heard at December Term, 1856, of this Court.
J. H. Bryan for plaintiffs.
Winston, Sr., Ashe, Blackmer, and B. F. Moore for defendants.
The bill was filed originally against Patrick B. Threadgill, as executor of Col. Thomas Threadgill, to procure satisfaction of a judgment at law rendered in favor of plaintiffs against the said executor. The bill alleged that the said P. B. Threadgill had combined with other defendants, who were legatees and next of kin of his testator, fraudulently to deliver to them the assets of the estate (chiefly slaves), so that the same might be wasted and put out of the way in order that the collection of plaintiffs' judgment might be defeated, and that these assets were more than sufficient to pay this and all other debts of the estate. At the said term (December, 1856) a declaration was made that these allegations were true in fact, and a decree was made, following portions of the assets in the hands of certain of the defendants. The said P. B. Threadgill having died, his administrator, the defendant G. A. Smith, was made a party at the term at which the said decree and declaration were made; and satisfaction not having been made out of the assets in the hands of the other defendants, an order was made at June Term, 1858, of this Court directing W. E. Troy, Esq., to state an account of the assets of the estate of P. B. Threadgill in the hands of the administrator. The said commissioner made his report to this term, and exceptions, as stated in the opinion of the Court, were filed on both sides. The cause was heard on these exceptions.
This case comes before us for further directions upon certain exceptions heretofore filed by each party to the report of Mr. Commissioner Troy, in relation to the administration by the defendant Smith of the estate of his intestate, Patrick B. Threadgill, who was the executor of Thomas Threadgill. The counsel for the defendant Smith now insists that there is no decree against his client, and (170) urges that as an exception to the whole report. We think the exception cannot now be entertained by us. The liability of Patrick B. Threadgill to the plaintiffs, on account of a devisavit of the assets of the testator, has been adjudicated in this Court, and upon that the liability of the other defendants was predicated, as will be seen in the opinion heretofore given in the cause ( 56 N.C. 50). The administrator of the said P. B. Threadgill was, after his death, made a party to the suit and submitted to the reference to the commissioner, and upon the coming in of his report at the last term of this Court filed exceptions thereto, at which time the counsel for the plaintiffs also filed exceptions. The only questions, then, which are now before us arise upon the report and the exceptions thereto. If the defendant Smith wish now to object to the whole report upon the ground stated by his counsel, he should bring it forward by a petition to rehear the order for the reference, and that would probably be met by a motion to enter, nunc pro tunc, a decree, to which the plaintiffs were and are still clearly entitled.
We will proceed, then, to consider the exceptions to the report of the commissioner, and will take up first that filed by the defendant, which is, "because he has rejected the vouchers mentioned in his report, they being proper debts, charges, and expenditures of the estate of his intestate and not of inferior dignity to the claim of the plaintiff against the estate of Thomas Threadgill." This exception seems to be based upon the ground that the plaintiffs are now proceeding against the estate of Thomas Threadgill, the testator of the defendant Smith's intestate, Patrick B. Threadgill. This is a mistake. P. B. Threadgill, by his devastavit, rendered himself personally liable for the plaintiff's debt, and after their bill was filed for the purpose of enforcing that liability, as well as for purpose of following some of the wasted assets in the hands of the other defendants, the defendant Smith had no right to make a voluntary payment to other creditors of his intestate, whose debts were not of higher dignity. This is common (171) learning, and does not require the citation of any authority in its support.
The exceptions of the plaintiffs are three in number, and we will consider them in the order in which they are stated.
The first is, that the commissioner has credited the administrator with the receipt of the widow of the intestate for $75, the amount of her "year's allowance as laid off by the commissioners appointed by the court." This receipt appears to have been given on 14 October, 1856, which was before any decree was obtained in the cause against the administrator for the devastavit of his intestate. The claim of the plaintiffs was, therefore, at most, but a debt against the intestate, over which the Revised Code, chap. 118, sec. 20, gave the widow's year's allowance a preference. The exception must, therefore, be overruled.
The second exception is, that the administrator is credited with sundry payments which appear to have been made in 1857 on judgments rendered against the intestate more than ten years before, to wit, in 1842 and 1843. The counsel for the plaintiffs contend that these judgments were, in law, presumed to have been paid, and, therefore, the administrator paid again in his own wrong, and that the plaintiffs ought not to be prejudiced by it. On the other hand, the counsel for the administrator insists that he was not bound to plead or rely upon the statute of presumptions, and that if he believed the debt to be an honest one he had not only a right to pay it, but it was his duty to do so. We do not doubt that an executor or administrator has a discretion whether he will plead the ordinary statute of limitations to a claim against the estate of his testator or intestate, and that if he is satisfied that the claim is just he is not bound to plead the statute in a suit against him at law. But we think the case is different where the alleged claim or debt is so old and stale that the common or statute law raises a presumption of its having been paid from the lapse of time. In such a case the administrator, before he pays such a claim, ought to show that the (172) presumption was untrue, and that it had not in fact been paid or satisfied. See Williams v. Maitland, 36 N.C. 100; McCulloch v. Daws, 22 E. C. L., 386; Shaven v. Vanderhorst, 4 Eng. Con. Ch. Rep., 458. Especially ought such proofs to be required where a creditor of an intestate has a suit pending against the administrator upon which he afterwards obtains a decree. This exception is, therefore, sustained.
The third exception is, that the administrator is credited with sundry payments made in 1857 on judgments obtained against the administrator in suits on bonds given by the intestate more than ten years before. In these suits the administrator set up no defense and permitted the judgments to be given against him by default. For the reasons assigned in sustaining the second exception, we think the present must also be held valid.
The result is that the report must be recommitted to Mr. Commissioner Troy, with instructions to disallow the vouchers mentioned in the second and third exceptions of the plaintiffs unless the defendant Smith can show that the claims for which those vouchers were taken, and which, by presumption of law, were paid were never in fact paid. The commissioner must report the evidence, if any be offered, to rebut the presumption of payment which the statute raises from the lapse of time.
PER CURIAM. Rereferred to commissioner.
Cited: Halliburton v. Carson, 100 N.C. 106; Pate v. Oliver, 104 N.C. 466.
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