Opinion
(June Term, 1842.)
An administrator de bonis non of a testator or an intestate is a necessary party to a bill calling upon the administrator of the deceased executor or original administrator of such testator or intestate for an account of the administration.
THIS was a bill filed in ONSLOW Court of Equity, at Fall Term, 1839, by the plaintiff against the defendant as the administrator of Charles Thompson, who was the administrator of Elizabeth Ward, claiming that the plaintiff was one of the distributees of Elizabeth Ward; that the said Charles Thompson owed him, as administrator of the said Elizabeth, on a settlement of his administration accounts, at least $500; that the said Charles had bought his note, amounting to about $100, and that the defendant, as administrator of the said Charles, had brought suit on the said note, and praying for an injunction against the said suit and also for an account of the estate of the said Elizabeth Ward. To this bill the defendant demurred because no administrator de bonis non of Elizabeth Ward was a party to the suit. At Spring Term, 1842, his Honor, Battle, J., presiding, the demurrer was overruled and the defendant ordered to answer, from which interlocutory decree the defendant, by permission of his Honor, appealed to the Supreme Court.
No counsel for plaintiff in this Court.
John H. Bryan and J. W. Bryan for defendant.
The bill states that Elizabeth Ward died in 1836; that Charles Thompson became her administrator; that (136) Thompson purchased a note which had been given by the plaintiff for the sum of $100. Thompson died in 1838, without making a settlement with the next of kin of his intestate, the plaintiff being one of them. The bill then charges that there was $500 residue of the estate of Elizabeth Ward in the hands of Thompson at his death; that the defendant as administrator of Thompson has obtained judgment on the said note of $100 and has issued execution on it. The plaintiff alleges in his bill that he as one of the next of kin of Elizabeth Ward is entitled to at least $100 out of the said assets which are now in the hands of the defendant as the administrator of Thompson, who was the administrator of Elizabeth Ward. The bill prays for an injunction and also for an account of the estate of Elizabeth Ward. The defendant demurred to the bill, and for cause of demurrer says that he as administrator of Thompson is not compelled to account to any person but the administrator de bonis non of Elizabeth Ward. The judge overruled the demurrer, but consented to an appeal on that point to the Supreme Court.
In Goode v. Goode, 4 N.C. 684, it was decided that an account of the personal estate would not be decreed in favor of the next of kin of an intestate without making the administrator a party to the bill. This decision has uniformly been followed in this State. The administrator de bonis non of Elizabeth Ward is not a party to this bill. The judgment overruling the demurrer must therefore be reversed, with costs in this Court. Whether the Superior Court will continue the cause to enable the plaintiff to obtain administration and then amend his bill may be a question for its consideration when the cause shall be there again called.
Ordered that this opinion be certified to the court below.
PER CURIAM.
(137)