Opinion
(December Term, 1832.)
1. An administrator who has, without neglect, been compelled to pay debts of his intestate to an amount exceeding the personal estate will be reimbursed out of the real assets.
2. But if the payment be voluntary, whether he will be aided, quere.
3. The heir is concluded by a judgment against the administrator as to everything but the amount of assets received by the latter.
THE case made out by the bill was that the plaintiff was appointed administrator of John Sanders by the county court of JOHNSTON; that he found among the papers of his intestate evidences of debt to the amount of $8,400, against Reuben Sanders, who was perfectly solvent; that this sum was subject to a legal set-off on the part of the debtor, which reduced it to the sum of $5,317, which was assets in the hands of the plaintiff, and for which he was charged in suits brought by the creditors of the intestate; that Reuben Sanders, the intestate, and one White had been copartners in trade; that the former had been charged before the death of the intestate with the settlement of the copartnership; that White had become insolvent, and Reuben Sanders had found that the copartnership dealing had eventuated in a loss, which from the insolvency of White was to be borne by him and the intestate; that he had obtained a decree in the court of equity for the county of Johnston, whereby the amount of the balance due at law by him to the intestate was reduced to $1,447; and that in consequence of this equitable set-off of Reuben Sanders against the debt above mentioned, not being a defense at law to the plaintiff against the creditors of his intestate, he had been subjected to the payment of debts to an amount exceeding the (263) assets which had come to his hands. The defendants were the heirs of John Sanders, the intestate, and the bill prayed that the real assets which had descended to them from their ancestor might be sold, and from the proceeds thereof the plaintiff might be indemnified for the amount he had paid over and above his receipts.
Gaston and Devereux for plaintiff.
W. H. Haywood for defendant.
Copies of a judgment at law in favor of the plaintiff against Reuben Sanders and of a decree establishing the equitable set-off of the latter were filed.
We do not mean to decide the question whether an administrator or executor, who goes beyond his assets in payment of debts, without showing a special reason for doing so, can claim to be reimbursed out of the real estate. Here the administrator has made out a very clear and strong case why he was compelled to pay debts beyond the amount of his testator's personal estate, and has given a very satisfactory reason why he, in his inventory, charged himself with the full amount of the apparent debt due his intestate from Reuben Sanders, and how it was afterwards diminished by throwing on the estate a claim which Reuben Sanders had on the copartnership, by the insolvency of White, one of the partners. We think that the plaintiff did not act improperly in charging himself with the full amount of that debt in his inventory, and that it was his duty to allow the decree obtained by Reuben Sanders against him, an account of White's insolvency, as a set-off against it. If by these means he was charged and did pay to creditors beyond his assets, he has a fair claim in this Court to a reimbursement.
Next, as to the proof. The decree in the suit of Reuben Sanders against the copartnership fixes, as to the defendants, both the amount of his claim and the liability of the administrator to the sum decreed against him for the insolvency of White, for that would have (264) been its effect in a suit at the instance of Reuben Sanders to subject the real estate to its payment, and such must be its effect in favor of those who are substituted to his rights. The conclusive effect of that suit arises from the peculiar relation subsisting in our law between the personal representatives and the heir. I call it peculiar, for I believe it nowhere else exists. Here they are not strangers as they are in England, but there is a quasi privity between them, as the former defends as well for the heir as for the other creditors, the legatees, and next of kin. The judgment against him, in the absence of fraud, is conclusive upon all, except as to the plea of fully administered. The law allows the heir to contest that, when brought in to show cause, not why the creditor should recover his debt, but why he shall not have his judgment, obtained against the executor or administrator, levied out of the real estate. It is upon this privity that an executor or administrator, who has disbursed beyond his assets, stands in a different situation from a mere officious intermeddler, who obviously pays money for another, and then claims reimbursement. What may be the effect of such a state of facts this case does not require us to decide. The debt being thus conclusively fixed on the heir, there being no fraud, no collusion, it remains to prove the expenditure of asset, and as to that an account must be taken.
PER CURIAM. Direct an account.
Cited: Scott v. Dunn, 21 N.C. 427; Smith v. Brown, 101 N.C. 350; Publishing Co. v. Brown, 165 N.C. 490.