Summary
In Stonestreet v. Frost, 123 N.C. 640, the sheriff presented an execution, issued before the intestate's death, to the administrator and demanded payment, admitted to be correct: Held, to be a "filing" within said sec. 164.
Summary of this case from Hinton v. PritchardOpinion
(Decided 23 December, 1898.)
Administrators — Filing Claims — Statute of Limitations — Counsel Fees — Commissions.
1. Counsel fees paid by an administrator obviously for the purpose of obstructing a settlement will not be allowed as a charge against the estate.
2. Commissions will not be allowed an administrator who fails to file proper inventory and returns and mixes the estate funds with his own, and he should be charged with interest.
3. The exhibition by the sheriff within one year of date of administration to the administrator, of an execution in his hands at the time of the death of the intestate, issued upon a judgment in favor of the county against the intestate, which the administrator admits, is correct and does not pay for want of assets — is a sufficient "filing" required by The Code, sec. 164, so as to render unnecessary an action to prevent the bar of statute of limitations.
PLAINTIFF'S APPEAL.
CIVIL ACTION instituted by the next of kin and distributees of the estate of W. Stonestreet against the official bond of E. Frost, his administrator, heard before McIver, J., at Spring Term, 1898, of DAVIE Superior Court upon exceptions to report of referee.
By leave of the court the county of Davie was allowed to interplead in this action in order to assert an unpaid claim, due by judgment recovered against the intestate in his lifetime.
The referee reported a balance due from Frost, administrator, of $544.59. In arriving at this amount, the referee excluded a charge of $100 counsel fees for services in this action, on the ground that the administrator had had the estate unsettled in his hands for seventeen years; had paid $40 in counsel fees at the start; had done nothing since, and was now resisting a settlement.
The administrator excepted to this action of the referee, and (641) the exception was sustained by his Honor, who allowed the charge, to which ruling the plaintiffs excepted.
In regard to the debt set up in the interplea by the county of Davie against the estate of the intestate the referee found these facts:
The intestate, W. Stonestreet, died 15 February, 1877, and the defendant E. Frost was appointed administrator 5 March, 1877. This action was commenced 30 August, 1894.
That at Fall Term, 1873, of Davie Superior Court, judgment was rendered in favor of M. Fulford, county treasurer, against said W. Stonestreet and others for the sum of $1,642.15, of which sum $1,138.85 was principal money, and no part thereof has ever been paid.
That under an execution upon said judgment the homestead of W. Stonestreet was allotted to him prior to his death.
That after his death and appointment of E. Frost as his administrator, an execution issued on said judgment against said W. Stonestreet prior to his death, was presented to the said administrator by the sheriff of the county and payment demanded of him, within one year from date of his appointment as administrator, who did not dispute said debt nor the liability of the estate of his intestate to pay the same, but declined to pay for lack of assets in his hands at the time, and recognized said judgment as a valid debt against the estate of the intestate; that no other presentation of said claim has ever been made to said (642) administrator and no other demand for its payment has ever been made of him by the county.
That said Frost, administrator, duly published notice to creditors to present claims as required by the statute.
REFEREE'S RULINGS OF LAW.
That the demand by the sheriff of Frost, administrator, within one year from the date of his appointment for payment of judgment of Fulford, Treasurer, v. W. Stonestreet and presentation of execution therefor, was a sufficient presentation of claim to the administrator, and especially so as he did not dispute its validity, but recognized it as a valid claim against the estate of intestate.
That upon the presentation of said judgment and recognition of its validity by the administrator, it became unnecessary for the holder to bring action to stop the running of the statute.
No final settlement having ever been made by Frost as administrator, this debt is not barred by any statute of limitations as to him, and must be paid before the distributees receive anything; and as there is not sufficient assets to pay said debt, that ever came into his hands, the county commissioners are entitled to judgment for the sum of $5,000 (penalty of the bond) to be discharged by payment of $544.59, with interest from 5 March, 1879.
The plaintiff excepted to the ruling of the referee that demand by the sheriff of Frost, administrator, within one year from the date of his appointment as administrator for the payment of the judgment and presentation of the execution, was a sufficient presentation of the claim to the administrator under the statute providing for the presenting of claims to an administrator.
The plaintiffs also excepted to the ruling of the referee that (643) the presentation of the execution and the recognition of the validity of the judgment by the administrator rendered it unnecessary for the holder to bring an action to stop the running of the statute.
Also to his ruling that the said judgment must be paid by the administrator before the distributees receive anything.
His Honor overruled these exceptions, and the plaintiffs excepted and appealed.
Watson, Buxton Watson for plaintiffs (appellant).
Glenn Manly, E. L. Gaither, T. B. Bailey and Holton Alexander for appellees.
CLARK, J., delivers the opinion of the court.
MONTGOMERY, J., dissents.
The referee found as a fact that in July, 1897, Frost, the administrator, paid an attorney's fee of $100, and that he paid before that time to other attorneys for services in the settlement of the estate $40. Upon that finding of fact the referee held as a matter of law that as the administrator had paid $40 for counsel fees in the settlement of the estate, and as there was no evidence to show that he had any unusual trouble in transacting the business of the estate, and that the $100 was paid seventeen years after anything had been done by the administrator in closing up the estate and after this action was begun, the administrator was not entitled to have any allowance out of the estate for the fee of $100. The defendant Frost, administrator, excepted to these findings of the referee, the exception was sustained, and the (644) plaintiff excepted. There was error in the ruling of his Honor. We think that the administrator should not have been allowed the $100 fee which he paid to his attorney out of the assets of the estate, for the reason that the service rendered by the attorney was for the attempted prevention of the recovery against the administrator by the distributees of that which belonged to them.
It follows from what we have said as to the ruling of the court on the attorney's fee of $100 that the ruling in sustaining the exception of Frost, to which the plaintiff excepted, was erroneous, and that the amount, therefore, of the balance which the referee reported to be due by the administrator was the correct amount — the nonallowance of commissions to the administrator to the referee having been approved by his Honor.
The fifteenth finding of fact is as follows: "That after the death of W. Stonestreet and appointment of E. Frost as administrator of his estate, and execution issued on said judgment against Stonestreet prior to his death was presented to the administrator by the sheriff and payment demanded of him, within one year from the date of his appointment as administrator, and the administrator did not dispute the debt or the liability of the estate to pay the same, but declined to pay for lack of assets in his hands at the time, and recognized said judgment as a valid debt against the estate." Upon that finding of fact the referee found as a conclusion of law 5, that the demand by the sheriff of Frost, administrator, within one year from the date of his appointment as administrator for payment of the judgment of Fulford, treasurer, against W. Stonestreet and the presentation of execution therefor was a (645) sufficient presentation of the claim to the administrator, and especially so as he did not dispute its validity, but recognized it as a valid debt against his intestate's estate, and also afterwards, at the request of one of the distributees agreed to put off the final settlement of the estate so that it might pass out of date. 6. That at the time said execution was presented and payment demanded of said administrator, the said judgment was not barred by the statute of limitations, but was a valid judgment against the estate of W. Stonestreet. 7. That upon the presentation of said judgment and recognition of its validity by the administrator, it became unnecessary for the holder to bring action to stop the running of the statute. 10. That no final settlement having ever been filed by the administrator, the claim of plaintiff and the debt of the board of commissioners of Davie County are not barred by any statute of limitations as to him, and that the said judgment of Fulford, treasurer, against W. Stonestreet must be paid by the administrator before the distributees receive anything, and as there is not sufficient assets of the estate to pay said debt that ever came into the hands of the administrator, the board of commissioners of Davie County are entitled to judgment against E. Frost for the sum of $5,000, to be discharged on payment of the sum of $544.59 with interest thereon from 5 March, 1879, and on $29.20 from 11 October, 1881, and on $29.25 from 7 April, 1881. The exceptions to these findings were overruled and the court rendered judgment in favor of the commissioners of Davie County in accordance therewith.
It would seem that this was a strict and proper compliance with the provisions of The Code, sec. 164. The execution was not unadvisedly issued nor void, as it is found as a fact that it was issued prior (646) to the death of W. Stonestreet; the sheriff was the agent of the judgment creditor, the county treasurer, to collect the execution, and upon the death of the judgment debtor he presented it to the administrator, "who did not dispute its validity, but recognized it as a valid debt against his intestate, and also afterwards at the request of one of the distributees agreed to put off the final settlement of the estate so that it might pass out of date." In the same finding it is said that the sheriff, within one year after the qualification of the administrator, demanded of him "payment of the judgment of Fulford, treasurer, against W. Stonestreet" and presented the execution therefor. It is difficult to see how the county could have done more. The debt was merged in the judgment, and the judgment was recorded in the courthouse. The official agent of the county for purposes of collection, on behalf of the plaintiff in the judgment (the county treasurer) demanded of the administrator payment thereof and presented as evidence of the judgment and amount thereof the execution which had been issued thereon prior to the judgment debtor's death. The administrator acknowledged the validity of the debt — "recognized the judgment as a valid debt against his intestate." This would have been a sufficient "filing" if the judgment creditor had been a private individual, and there can be no reason why it should not be so when the plaintiff in the judgment is a county treasurer who is faithfully endeavoring to protect the rights of the public. Turner v. Shuffler, 108 N.C. 642; Brittain v. Dickson, 104 N.C. 547. If the county had lost the debt by the failure of its treasurer to present it, he would have been liable on his bond, but having presented it like any other creditor (who could do so by an agent), upon admission by the administrator of its validity, the amount being ascertained by (647) the judgment, there was no reason why the treasurer should have instituted suit. Had he done so, he should have been taxed with the costs individually.
The creditor can never compel the administrator to "string" the claim. He has done his part when he has presented it to the administrator with sufficient certainty as to the nature and amount of the debt, and the admission of its validity by the administrator dispenses with any formal proof thereof. When the administrator admitted the validity of the judgment he admitted the correctness of the amount. There was nothing else to prove.
Modified and affirmed.