Opinion · Supreme Court of North Carolina

Eure v. . Eure

Eure v. . Eure, 14 N.C. 206 (N.C. 1831)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1831-12-05
Topic: general

HekbersoN, Chief-Justice. If we resort to authority, we shall find, that as soon as it was determined, that an executor or an administrator conlxl receive a bill ,or note as executor or administrator, and could sue thereon in his representative character, that those decisions were immediately followed by others, declaring that if the bill or note was not collected by the executor or administrator, but was left uncollected at his death, the right to collect and sue on it devolved upon the representative of the first testator or intestate, as unadministered by the first' representative. And were it not for a difference in the opinion of the court, I should think that there could not be a doubt upon the question. Because the reason why the executor or administrator could sue in his representative character, was that the bill or note was of the estate of his testator or intestate, yet -to be administered. On no other principle, could the action by him in that character be sustained.

Citator

UpLaw has not yet analyzed Eure v. . Eure. The absence of a flag is not a finding that it is good law.

Cited by: 1 opinion

EUREv. EURE,14 N.C. 206(1831)

MARY EURE, ADMINISTRATOR OF JOHN TILLERY, v. ELISHA H. EURE.

Supreme Court of North Carolina

(December Term, 1831.)

When an executor sells the assets of his testator and takes a bond payable to himself,as executor, and dies leaving the bond uncollected:It was held, RUFFIN, J.,dissentiente, in the absence of any evidence that the executor had appropriated the bond to his own use, that both at common law and under the Act of 1794 (Rev., ch. 415), "to explain and supply the deficiencies of certain acts of Assembly respecting sales by executors and administrators," the bond was of the assets of the testator, and an action on it might be brought by the administratordebonis non.

THIS was an action of debt, originally commenced by warrant upon a bond executed to Stephen Eure, as administrator of John Tillery, upon the sale of the personal property of the intestate. After the execution of the bond, Stephen Eure died intestate, and administrationde bonis nonupon the estate of Tillery was then committed to the plaintiff. Upon the trial beforeMangum, J., at HALIFAX, on the spring circuit of 1829, it was objected for the defendant that the bond was not evidence of a debt due by the defendant to the plaintiff, as administratrix of Tillery, but was only evidence of a debt due Stephen Eure in his lifetime, and that the action ought to have been brought by his administrator.

Upon this objection, his Honor being of opinion with the defendant, nonsuited the plaintiff, who appealed.

Devereux for plaintiff. (207)No counsel for defendant.

HENDERSON, C. J.

If we resort to authority, we shall find that as soon as it was determined that an executor or an administrator could receive a bill or note as executor or administrator, and could sue thereon in his representative character, that those decisions were immediately followed by others, declaring that if the bill or note was not collected by the executor or administrator, but was left uncollected at his death, the right to collect and sue on it devolved upon the representative of the first testator, or intestate, as unadministered by the first representative. And were it not for a difference in the opinion of the Court, I should think that there could not be a doubt upon the question. Because the reason why the executor or administrator could sue in his representative character was that the bill or note was of the estate of his testator or intestate, yet to be administered. On no other principle could the action by him in that character be sustained. If unadministered by the first representative, the administration of it devolved on the administratorPage 178de bonis non, or the executor of the executor, as the case might be, who thereby became the executor of the first testator. In the case of the administratorde bonis non, his commission or letters of administration direct and authorize him toadminister all the estate of the testator orintestate unadministered by A. B., the former executor or administrator. And the law makes the same injunction to the executor of the executor, as to the unadministered estate of the first testator. When it was held for law, as it once was, that an executor or administrator could not receive a bill or note in his representative character, and of course could not sue on it in that character, it is not to be wondered at that it was also held that if he died, holding a note or bill, although professed to be received in that capacity, and for a debt due to his testator or intestate, upon his death, his executor or administrator only could sue upon it, and the representative of the first testator or intestate could not. Indeed, it would have been wonderful if it had been held that the (208) representative of the first testator could have sued. For it would have presented a case where the administratorde bonis noncould sue as such, where the first administrator or executor could sue only in his private and not in his representative character. It would be saying that the bill or note, in the hands of the first administrator or executor, was not of the estate of the testator or the intestate, but on the death of the executor or administrator it became so. The doctrine can only be attacked in the bud, in the right of the executor or administrator to receive a bill or note, as executor or administrator. For if that is admitted, I think the other follows of course. In deciding this case, I have no interest to support or deny the modern doctrine of the English courts that he can. Indeed, it seems now to be universally admitted there ever since the case ofKing v. Thom, 1 T. R., 487, that executors or administrators may receive bills or notes in their official character. The doctrine has been gradually extending itself to other official acts. And in the case ofCatherwood v. Chabaud, 8 Eng. C. L., 45, where the assignment was to the administratorgenerally, not asadministrator, yet being for adebt due to the intestate, the bill being uncollected by the administratrix in her lifetime, it was held that it devolved on the administratorde bonis non, as assets of the estate of the first intestate, to be administered by him as unadministered by the first administratrix.

I said I felt no interest in supporting the English decisions that an executor or administrator, as such, might receive a bill or note, in order to support the opinion I have formed. For be that as it may in England, they can certainly in this State take bills, bonds, and notes in their representative character. The acts of our Legislature direct executors and administrators to sell the estate of their testator or intestateon aPage 179credit, to take bondswith surety; that the money,when collected, shallbe assets, and prescribe how judgments shall be entered against them before collection. Argument is useless, I think, to prove that they hold the evidences of these debts in their official and not in their individual character. The money due on the sales is not assets until (209) collected. They may, therefore, sue on these bonds, as executors or administrators, for they are of the estate of their testator or intestate unadministered. If they can, and should die before they do, the administratorde bonis noncertainly can and must. They devolve on him as unadministered assets of the first testator or intestate. It is said that inconveniences will result from giving this right to the administratorde bonis nonto sue, as that the first executor or administrator will lose his right to retain for his own debt, and his opportunity of reimbursing himself for advances. Not so. He has nothing to do, but by some overt act, to make an appropriation, and the debt is his. It is administered. This, however, is not a contest between the two representatives, but the debtor sets up this defense against the administratorde bonis non. Besides, we find this bond in the hands of the administratorde bonis non, and we must presume it came rightfully there. But if the law is settled, inconveniences cannot alter it. They can only be thrown in, in doubtful cases, to show how the law is, and, I think, from our acts of Assembly, were it not for the difference of opinion that this is not one of those doubtful cases where inconveniences should have any weight. But I think the inconveniences are the other way. If this be as contended for, that is, the first administrator's own debt (and they who hold that the administratorde bonis noncannot sue affirm it), if the defendant, the purchaser at the sale, have a debt against the first administrator, he may unjustly against his will. For nothing can prevent such debt being a set-off, if the note be the first administrator's. They are due, then, in the same right; that is, both individually. They are thereforemutual. Thus, the whole property may be swept away by the creditors of the administrator purchasing up the property at the executor's or administrator's sale, and setting off their debts against the executor or administrator. A further inconvenience will follow. The administratordebonis nonmust stand by and wait the pleasure of the representative of the first administrator or executor in the collection of the (210) debts, and his further pleasure in paying them over to him, after he has collected them, when it might be done at once by authorizing the administratorde bonis nonto collect them.

As to the objection that it does not appear that Tillery was the first administrator, the bond shows it, as to this defendant. But if it did not, the lettersde bonis non, of which the court had aprofert, do. They arePage 180to administer all the goods not administered by Tillery, the former administrator. I have taken it for granted that this is a bond taken at a sale of the assets.

HALL, J.

It was held inJenkins v. Plombe, 6 Mod., 181, that where an executor suedas such, but might have sued in his own name, he was liable for costs. Sayer's Law of Costs;Atkey v. Heard, Cro. Car., 219. And that was the reason given why counts in such an action could not be joined with counts in an action where an executor could sue only as executor, because it was said he was liable for costs in the first case, but not in the latter (Rogers v. Cooke, 1 Salk., 10;S. c., 1 Show., 366), and because the costs were entire and could not be severed.Betts v. Michell, 10 Mod., 316. The objection, therefore, would not lie against either suit, when brought singly, although in the name of the executor.

In other cases, however, the validity of this objection seems to be impaired, for inBull v. Palmer, 2 Lev., 165, the plaintiff charged that the defendant covenanted with him as executor, and was nonsuited. It was held that as the action was brought in right of his executorship, and the money, if recovered, would be assets, he should not pay costs.Portman v.Came, Str., 682;Peacock v. Steere, Cro. Car., 29;Mason v. Jackson, 3 Lev., 60.

In another and a later case the question was, not concerning costs, but whether executors to whom a bill of exchange had been endorsed could sue upon it as executors. It was held that they could, because, amongst the reasons, it was said that the money, when recovered, would be considered as assets.King v. Thom, 1 Term, 487.

(211) In a still later case, in an action of trover by an executrix for a conversion in the testator's lifetime, and also for a trover and conversion after his death, on a nonsuit it was held that the plaintiff was not liable for costs. And Buller stated that whether the conversion was before or after, if the goods, when recovered, would be assets in the hands of the executrix, she must sue for them in her representative character.King v. St. Mary, 4 Term, 477.

It was said inCowell v. Watts, 6 East, 405, that the correct and rational rule is that counts may be joined in which the money, if recovered, will be assets.Petrie v. Hannay, 3 Term, 659.

In the late case ofCatherwood v. Chabaud, 8 Eng. C. L., 45, it was held that where a bill of exchange was endorsed generally, but delivered to S.C. as administratrix for a debt due to the intestate, and S.C. died intestate after the bill became due, and before it was paid, the administratorde bonis noncould sue upon the bill. The money, in case it had been received by S.C. upon the bill of exchange, would have been assetsPage 181of the estate of the intestate. As it was not received, the plaintiffs, the administratorsde bonis non, had a right to sue for it.

This last case seems to be decisive of the one before the Court. The note in question was given to Stephen Eure, as administrator of John Tillery. When Stephen Eure died, and letters of administration were granted to the plaintiff, she had a right to institute the present action, according to the principles laid down in the foregoing authorities. Whether the debt was recovered by Stephen Eure, the former administrator, or by the present plaintiff, the administratrixde bonis non, it is assets of the estate of John Tillery. I therefore think the nonsuit should be set aside and a new trial granted.

RUFFIN, J.,dissentiente: It seems to me that a reversal of this judgment isquieta movere. Nothing, I thought, was better settled in the law of this State than that a bond, taken by an administrator, for property of his intestate sold by the administrator, belonged to the administrator. The opinion now entertained by the other members of (212) the Court has led me seriously to reconsider my own. It has not resulted in any change.

The old law was certainly in conformity to the opinion of the court below. An executor could declare in his representative capacity only for matters arising in the testator's time. The executor's own acts were all personal to himself, and were declared on in his own right. Upon his death there was no privity between him and the administratorde bonis non. I admit that changes to a certain extent have gradually taken place in England which, after producing no little confusion in the law of administration, have resulted in the modern case ofCatherwood v. Chabaud, the reasoning in which is nearly in point with the case before us. I not only entertain profound respect for those adjudications, as the opinions of eminent and learned men, but I acknowledge them to be authoritative as determining what the common law is. Nevertheless I cannot allow so much authority to a single judgment of a single court, as to suffer it to overrule a multitude of the decisions of their predecessors, and the uniform course of our own. Innumerable cases have occurred in which this question has arisen. Yet I have not heard of a solitary instance in which the law has not been expounded as by the judge below. I have myself had it ruled on me, and ruled it so repeatedly, on the circuit. I am well satisfied that those decisions were right.

It is of the utmost importance that the course of administration should be certain; that no rule should be countenanced which will disturb the order of paying debts or embarrass the right of set-off, orPage 182impair the right of retainer in the first administrator of his claim to indemnity for advances for the estate. I think all these consequences will follow the change now made.

It is said that the principle of the modern cases is that an executor may declare on a promise to him,as such, if the debt, when recovered, will be assets. I will not deny that. But if a new bond be taken by the executor for an old debt, due to the testator himself, it is a change (213) of the debt, which makes it assets immediately. Why? Because upon his death the new bond will not survive to the administratorcum testamento annexo. This is the very reason given in the old books. Such a bond is declared on in thedebetanddetinet, and goes to the executor's own administrator. But here the bond was taken for property sold.Thatwas assets as soon as it came to hand; and if the executor sell it, it does not cease to be assets. Whether the price be recovered or not, the value of the property is assets. Suppose a conversion or detention of it? Certainly the executor sues upon his own possession and declares in his own right. He does not make aprofertof his letters, but gives them in evidence as a link in his title. The reason is, that before recovery the property is assets, and since the executor is chargeable the property ishis. I am not speaking of a mere constructive possession by the executor, as where the trover was in the testator's time and the conversion in the executor's. In such a case he may declare as executor because the whole matter did not arise in his own time. But where he has had actual possession, it is clear that he declares inproprio jure. Then the property is changed and becomes his. Is it not strange that the property is assets and the price should not be? And upon a bond taken for it, debt in thedetinetwill not lie. (Hosierv. Ld. Arendel, 3 Bos. Pul., 7.) For it cannot be alleged that the obligorowedto thetestator, and detains from the executor.

The English cases allowing counts upon promises to the testator and to the executor,as such, to be joined, had their origin in a necessity under which the courts felt themselves to permit that mode of declaring for the sake of avoiding the statute of limitations. They first held that if the promise was laid to be made to the testator and the statute was pleaded, evidence of a promise to the executor was not admissible to take it out, because that was a different contract. Why a different contract if it relate to the same subject, and the debt due upon each promises to be assets only when recovered? Yet the courts of Westminster did not say until a late day, if it be yet definitely said, (214) whether the recovery is to be on the old promise as being revived by the new one, or upon the latter.Lord Mansfieldindeed tells us that the statute goes to the action only, and not the cause of action. ThePage 183reports of Burrow, Cowper and Douglas are full of such expressions, as that theremedyand not the right is barred. In our own day the question has been more minutely discussed, and an attempt made to follow the rule, that an executor might so declare, by another, that this new promise is the ground of the action and the old debt but the consideration. On this I must remark, that this Court has said nothing yet. Though pressed to it inTheBank of New Bern v. Sneed(3 Hawks, 500), it was declined, and what was dropped leaned the other way. But let the rule prevail to the extent of the necessity which caused it. I cannot carry it further so as to overturn other well settled principles and the rights of third persons.

The statutes of set-off are amongst the most valuable we have. They save expense, and in the true spirit of equity hold the balance due on dealings between the parties to be the real debt. The debts to be set off must be mutual and due in the same right. If an action be brought on a debt due the testator, a debt due from the testator may be set off. But if the debt arise in the executor's time, the debt of the testator cannot be set off. Why? Because it would disturb the order of administration. Specialty creditors, for example, are to be paid before those by simple contract. Yet if a sale of property by the executor create a debt from the purchaser to himas executor, a simple contract creditor by buying at the sale will defeat specialties by setting off the debt from the testator. If it be said that the executor can avoid this by suing in thedebetanddetinet, I answer that fails when the bond comes, upon the death of the executor, to the administrator of the testator, for he is obliged to declare in thedetinetonly, andasadministrator. It cannot be said that the set-off is to be allowed or not, as it shall appear that there are creditors of higher dignity, for that would involve an account of estate upon every issue of set-off. I do not suppose that it is meant that the right of set-off shall be at the mercy of the (215) executor. Yet I cannot tell how it is to be exercised hereafter. If the executor discovers that the debtor has a demand upon the testator, then he will sue in his own right, and by the form of declaring, preclude the set-off. If the debt be one of the executor's own, then he declares as executor, and the issue is alike unfavorable to the defendant. If the executor is himself to be compelled, without reference to his mode of declaring to admit as a set-off, against a debt contracted with himself, his own debt, why is that right of his creditor to be defeated by his death, as it will be when the bond passes to the administratorcum testamentoannexo?The rights of the debtor ought not to be altered on one and the same contract, when sued by one or another person. It ought to be certain what debt is the legal set-off, and not varied by the will ofPage 184the plaintiff. I have not cited authorities to these points, because I have chosen as illustrations positions the most elementary and familiar. But the general doctrine of set-off is explicitly laid down in the cases ofShipman v. Thompson(Willes, 103), andTegetmeyer v. Lumley (id., 261n). These considerations do not seem to have been adverted to by the judges who decidedCatherwood v. Chabaud. They seem to me to be important, and I suspect a case of set-off will be found very perplexing to that court, when it shall arise. One difficulty seems to have pressed itself on the notice ofMr. Justice Best, who gave his opinion last. The thought occurred to him, how he would have treated the action had it been brought by the administrator of the administratrix. He does not dispose of it otherwise than by remarking that "it was unnecessary to decide whether he could sue, for that it was sufficient to say that the administratorde bonis nonmight." He is pleased to add that "this observation will reconcile the cases." With great deference, I do not see any harmony in that argument. It seems rather to increase the discord. For I am at a loss for a principle upon which two different persons, in distinct rights, can have the power to sue on the same (216) contract, for the same sum at one and the same time. The right existing in one mustex necessitateexclude the other. I can hardly suppose that if the administrator of the administratrix had been plaintiff then he would have been turned out of court. If not, the other ought.Chief Justice Abbot, struck with the new view ofJustice Best, takes up the case again and remarks that there is much weight in the distinction. But he immediately admits that "there may be cases where the administrator of the administrator might andoughtto sue, viz., if the first administrator had made himselfdebtorto the intestate's estate for the amount of a bill received in payment of a debt due to that estate." Does not this give up the argument? There is no principle on which the administrator can make himself debtor to the estate by taking a bill, but that by changing the original debt, he makes it present assets — adebtnot being assets until collected or altered or the lapse of a reasonable time for collection. When thus extinguished, it is assets chargeable to the executor, and therefore whatever he receives in satisfaction of it, whether a bill, the purchaser's bond or a specific thing, is the administrator's own. But specific chattels, once in the executor's hands, are assetseo instanti, whether sold or retained by him — that is to say, at the common law.

This brings me to another branch of the subject not less important. TheChief Justiceputs an instance of an administrator becoming debtor to the estate in which he admits the security ought to belong to the administrator. The reason is much stronger when we consider him aPage 185creditorof his intestate or of the estate by advances for it. Is he to lose his right ofretainer?This must be if the right to the bond survive to the administratorde bonis non. I had thought before that the right to retain changed the property of the assets as soon as they came to hand. (Muse v. Sawyer, N.C. T. R., 204;Merchant v. Driver, 1 Saund., 307.) It is said, however, that suffering the administratorde bonis nonto sue is most convenient and accords more with justice, because it brings the intestate's estate more directly and speedily to be answerable to demands of creditors and next of kin. It is plain that the circuity (217) will be greater on the one side or the other, as the first administratorhappensto be a debtor or a creditor of the estate. I admit that the executor of the first administrator holds the proceeds of the bond in trust for the estate of the first intestate. But when he accounts as trustee, the estate of the first administrator is fully protected not only by a retainer, but by all fair allowances for advances. This is manifestly just, and I cannot assent to any rule which inverts the natural order of things, and that to the detriment of plain right. This view is also taken in a modern English case — that ofHosier v. Arendel, before mentioned. And that is grounded onBetts v. Mitchell(10 Mod., 315). In the former it was expressly held (in 1802, and though reference was made to the new fashion of declaring), that an executor could not join a count on a bond to his testator, with one on a bond to himself as executor. InCatherwood v. Chabaudthis case is not noticed, althoughLord Alvanleyexpressly declares that if a bond be given to an administrator, and he happen to die before the debt be recovered,"it cannot be contendedthat the administratorde bonis non can put it in suit."He says it could not be allowed, as it might affect the right to retain. AndChambre, J., says the debt created by a bond to an administrator is a debtto him, and will devolve onhisrepresentative. This case is precisely in point.Catherwood v. Chabaudmay indeed be distinguished from it, in what likewise will distinguish it from the case before us. It was an action ofassumpsiton a bill of exchange, passed to the administratoras such, for a previous debt to the intestate. Now there is a latitude of declaring in that action not allowable in debt. And since the case ofBickerdike v.Bollman(1 T. R., 405), it has been the common understanding that a bill received for a previous debt does not extinguish it. If the bill be not good, an action will lie on the original debt, and the bill is only collateral security. Thedebttherefore might survive to the administratorde bonis non, and draw after it the bill. But here there was no debt to the intestate. It was contracted with the administrator (218) himself, andhecould not declare in thedetinet, but only in thedebetanddetinet. For no action but debt will lie on abond, and therePage 186is a prescribed form for that which ties the Court down. The truth is, there is noprivitybetween a first and second administrator; and the law does not transfer contracts made with the one to the other. Let us consider the case of a judgment obtained by the administrator, even for a debt due to the intestate. Upon his death it is well known that, at common law the administratorde bonis noncould not enforce it, but was remitted to the original cause of action. Much less could he interfere with a judgment rendered on a bond given to the administrator himself. As to the first, we have now a remedy in the Act of 1824. But why was a statute necessary if the mere volition of judges was adequate to change the law? The act is confined to judgments in favor of the administrator in his representative character. How can we extend it to contractsin pais, entered into by the administrator himself? If the bond had ripened into judgment before the Act of 1824, it is plain that the administrator of the administrator alone could have sued on it. I cannot perceive any power in us to say that anybody else can sue on the bond itself.

I apprehend the Act of 1794 (Rev., ch. 415) has no bearing on the question. That does not mean to change the executor's rights or those of creditors, or the law of set-off. It only means to say when execution shall issue against the executor. If, however, it embraced the whole case, it would not affect the present question, because the bond fell due in January, 1827, and Stephen Eure himself received part payment in February, 1828. He lived long enough to make the bond his own, for if he does not use all lawful means to recover the money, he is chargeable with it by the letter of the act.

I know not how far the reasons upon which the judgment is reversed will carry us in other cases, but if this plaintiff can recover upon the ground that the bond, payable to S. Eure, the administrator of J. T. is, in effect, a bondto the estate, I cannot see why a bond given to a (219) guardian may not be sued on by the succeeding guardian, or by the ward in his own name, or why upon the removal of a guardian, or death of an administrator, these bonds may not be recovered introverby the ward or by an administratorde bonis non. I do not deny that the guardian or administrator is chargeable for the amount of the bonds payable to him as part of the estate. But that is in another court and upon the ground of a trust. That very proceeding admits the legal title to be in him to whom the bond is payable. But here the question is whether abond, payable to one man, can be sued on by another, who is not the assignee nor administrator of the obligee. If it can, I do not see why every bond payable to one, with a trust expressed on its face for another, is not a bond in law to thecestui que trust. I have examined this subject thus minutely because I consider it one ofPage 187much practical consequence. I hope I am mistaken in my views of the law and in my apprehension of evil results, but under my present impressions I must say that I think the judgment ought to be affirmed.

PER CURIAM. Judgment reversed.Cited: Alston v. Jackson,26 N.C. 51;Setzer v. Lewis,69 N.C. 134;Thompson v. Badham,70 N.C. 143;Rogers v. Gooch,87 N.C. 444;Ballinger v. Cureton,104 N.C. 477.