Opinion · Nclaw North Carolina

FEREBEE v. BAXTER, 34 N.C. 64 (1851)

34 N.C. 64

Type
Opinion
Court
Nclaw North Carolina
Jurisdiction
Nclaw
Date
1851-01-01
Topic
general

FEREBEE v. BAXTER, 34 N.C. 64 (1851) SAMUEL FEREBEE v. ISAAC BAXTER ET AL.Supreme Court of North Carolina (June Term, 1851.) 1. Upon the death of an administrator, the duty of settling up the estate devolves on the administrator de bonis non. The representative of the first administrator has nothing to do with it except to account for and deliver over to the administrator de bonis non such assets as may remain undisposed of. 2.

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FEREBEEv. BAXTER,34 N.C. 64(1851)
SAMUEL FEREBEE v. ISAAC BAXTER ET AL.
Supreme Court of North Carolina
(June Term, 1851.)
1. Upon the death of an administrator, the duty of settling up the estate devolves on the administratorde bonis non. The representative of the first administrator has nothing to do with it except to account for and deliver over to the administratorde bonis nonsuch assets as may remain undisposed of.

2. Creditors cannot sue him directly, nor have they a right of action on the first administrator's bond, for the bond does not vary nor add to the duties or liabilities of an administrator, but merely increases the security for performance of his duty.

3. A judgment obtained by a creditor against the administratorde bonisnonascertaining the amount of the debt, but declaring that this administrator has no assets will not vary the principle.
APPEAL fromCaldwell, J., at CURRITUCK Fall Term, 1850.Debtupon the administration bond of one Jesse Doxey, who was the administrator of James Doxey, deceased.

The facts in the case are as follows: The said Jesse, after the expiration of two years from his administration, paid over to the next of kin all the estate in his hands. He died some time in the year, and Benjamin Simmons became the administratorde bonis nonof said James Doxey. The plaintiff brought suit against the said Simmons upon a cause of action which accrued between the death of said Jesse and thePage 56grant of letters of administrationde bonis nonto said Simmons. The said Simmons, in the suit against him, pleaded fully administered. On the trial the jury found in favor of the plaintiff as to the debt (65) and in favor of said Simmons on the plea of fully administered. There was no judgment on the verdict other than such as the law implies. This suit is brought to recover the amount of the judgment.

The court was of opinion that the action could not be sustained, and in submission to this opinion the plaintiff submitted to a nonsuit. A motion to set aside was refused, and the plaintiff appealed.
No counsel for plaintiff.Heath for defendant.
PEARSON, J.
Upon the death of the administrator the duty of settling up the estate devolves on an administratorde bonis non. The administrator of the administrator has nothing to do with it except to account for and deliver over to the administratorde bonis nonsuch of the assets as have not been disposed of by the first administrator in the due course of administration.

Creditors and distributees must look to the administratorde bonis non, for he represents his intestate. There is no privity between them and the administrator of the administrator. They cannot sue him directly, nor have they a right of action on the administration bond executed by his intestate. This bond does not vary or add to the duties of or liabilities of an administrator, but merelyincreases the securityfor the performance of his duty.S. v. Johnson,30 N.C. 397;S. v. Britton,33 N.C. 110;S.v. Moore, ib., 160.

We prefer to put our decision on the broad principle, and lay no stress on the fact that the debt in this case did not become due until after the death of the first administrator.

The circumstance that the debt has been ascertained by a judgment seems to be relied on by the plaintiff for the purpose of taking his case out of the operation of the general principle. We are at a loss to (66) perceive how it can have that effect. In the first place, such a judgment is unknown at common law, and there is no statute to warrant it. At common law, no plaintiff could take judgment without showing a liability on the part of the defendant. The judgmentquandowas not an exception, for it did not in fact become a judgment until assets come to hand. Our statutes authorize a judgment when the defendant is not shown to be liable in but three cases: where "no assets" is pleaded, or before a single justice; when a creditor admits the personal estate to have been fully administered and seeks to charge the real estate; and where a creditor seeks to proceed on the refunding bond.Page 57So the judgment in this case not being authorized either at common law or by statute can have no force or effect.

In the second place, as there was no privity or cause of action before the judgment it is impossible that such a judgment can have the effect of creating a privity and giving the plaintiff a cause of action against a stranger. We imagine this experiment was suggested by some supposed analogy to the proceeding in equity, where relief is given after a creditor has ascertained his debt at law and is unable to obtain satisfaction. There is in fact no analogy. The action in this case is of the first impression, and has neither principle, authority, or analogy to support it.

PER CURIAM. Affirmed.Cited: Strickland v. Murphy,52 N.C. 244;Thompson v. Badham,70 N.C. 143;Morris v. Syme,88 N.C. 455;Grant v. Reese,94 N.C. 726.

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