Opinion
(December Term, 1860.)
Debts on a deceased person, assigned to one after the death of such person, do not constitute the assignee such a creditor as to entitle him to administration under Rev. Code, chap. 46, sec. 2.
CONTEST for letters of administration on the estate of John Brissington, heard before Bailey, J., at last Fall Term, of CRAVEN.
Hubbard for plaintiff.
J. W. Bryan and Washington for defendant.
The decedent was a native of England, and died in this county intestate and without leaving widow or children. The decedent did not owe the plaintiff Pearce anything at the time of his death, but after that even Pearce purchased notes and accounts from sundry persons to whom Brissington was indebted, and these exceeded in amount the debts due to the opposing applicant, Castrix. The latter resided in the State at the time of the decedent's death, and all his debts were (72) due and owing at the time. These debts he proved by his own oath. Upon this state of facts his Honor awarded the administration to Castrix, on the ground that he was the highest creditor residing in the State, within the meaning of this statute. From this order Pearce appealed.
Upon failure of the widow or next of kin to make application, the statute requires administration to be granted "to the highest creditor residing within the State, proving his debt upon oath before the court granting the same."
The requirement that the debt shall be proved by the oath of the creditor confines the right to have administration to creditors between whom and the intestate there existed a personal privity of contract, for, in the absence of this privity, the creditor cannot, by his oath, prove the debt; for instance, one who claims as assignee cannot thus prove the debt; he may, by his oath, prove the assignment, but he cannot swear to the debt; for that originated in a transaction between the assignor and the intestate, in regard to which he had no privity, and must make proof aliunde.
The policy of the statute, obviously, is to require a creditor, applying for administration, to swear of his own knowledge that the debt is just and true. This is not satisfied by an oath of the alleged creditor that he believes the debt to be just and true and an offer to prove it by witnesses. The only mode of proof provided by the statute is the oath of the party. It was adopted, not merely for the sake of convenience, but because it is reasonable that the right of administration should be thus confined to creditors who are cognizant of the existence of their debts, as, after administration granted, the right of retainer attaches without further proof. In England the form of the oath is, "the deceased was at the time of his death justly indebted to the (73) applicant." 4 Chitty Gen. Prac., 147 (note). The wisdom of this provision of the statute, according to the construction we put on it, is strikingly illustrated by the facts disclosed in the case now under consideration. The applicant, Pearce, after the death of the intestate purchased sundry notes and accounts alleged to be due by the intestate, for the purpose of thereby acquiring the right to administer. Whether these notes and accounts are just debts or not, he does not know. But it is certain he was under a strong temptation, for the purpose of accomplishing his object, to admit without investigation every claim that was offered to him for sale, and the larger its amount the better it suited his purpose; thus opening wide the door for admitting false claims, to which unfortunately the estates of dead men are too much exposed, even without any undue collateral influence.
We concur with his Honor, that Castrix, the other applicant, having proved his debts by his own oath according to the requirement of the statute was entitled to the administration.
PER CURIAM. Affirmed.
Cited: Wallis v. Wallis, 60 N.C. 79; Williams, v. Neville, 108 N.C. 561; Boynton v. Heartt, 158 N.C. 495.