Alexander v. Alexander

• Decision Date: 27 April 1897
• Citation: 27 S.E. 121,120 N.C. 472
• Court: North Carolina Supreme Court
• Parties: ALEXANDER v. ALEXANDER.

27 S.E. 121

120 N.C. 472

ALEXANDER

v.ALEXANDER.

Supreme Court of North Carolina.

April 27, 1897.

Reference—Recommitting Report—Appealable Order—Exceptions—Negligence of Guardian —Action by Ward—Correction of Judgment —Claim against Intestate Estate — Printing Record on Appeal.

1. An order passing on the report of a referee, but recommitting it for correction, is not appealable.

2. Though an appeal from a final judgment was abandoned as premature, it operates as a sufficient exception to a prior order in the case passing on the report of a referee and recommitting it for correction.

3. Where a guardian accepts from an administrator a smaller sum than the ward's share in the estate, the wards may, at their option, sue the guardian or the administrator for the deficiency.

4. A judge at the final hearing cannot review a prior judgment rendered in the case by his predecessor, but such judgment can be reviewed only on appeal by means of the exceptions taken thereto.

5. A note given by brothers of an intestate for an attorney's fee to assist in prosecuting the alleged murderer of the intestate, being a debt created after his death, is not a proper charge against the estate.

6. When any part of the record on appeal is printed, the indexes and marginal references required to be put in the original record by rules 19, 21 (22 S. E. vii.), should also be printed.

Appeal from superior court, Buncombe county; Bryan, Judge.

Action by K. F. Alexander against W. J. Alexander, as administrator. Judgment for plaintiff, and defendant appeals. Affirmed.

Moore & Moore, for appellant.

T. H. Cobb, for appellee.

CLARK, J. The order of Armfield, J., passing upon the report of the referee, but recommitting it for correction, was not appealable; and an exception should have been noted, so as to bring up the ruling on appeal from the final judgment. Wallace v. Douglas, 105 N. C. 42, 10 S. E. 1043, and other cases cited; Clark's Code (2d Ed.) p. 562. The appeal then noted, but abandoned because premature, is a sufficient exception. Luttrell v. Martin, 112 N. C. 593, 17 S. E. 573. The settlement of the guardian, P. A. Cummings, with the administrator, and the receipt given in full by him, is binding upon such guardian, who, from having been present at the statement of the account before the clerk, had full knowledge of the transaction; and, indeed, there is no allegation of fraud or mistake, nor any proof, if it had been alleged, which would justify setting aside the receipt. But this action was brought by the wards in their own behalf, by a next friend (the guardian subsequently being made a party); and, if he accepted a lesser sum than the wards were entitled to, they have their option to sue either the guardian or the administrator for the deficiency. Culp v. Lee, 109 N. C. 675, 14 S. E. 74. The receipt in full given by the plaintiff, K. F. Alexander, widow of the deceased, is prima facie binding upon her, and there is neither "allegation nor proof to rebut this; but it appears from the "additional findings of fact by agreement of parties" that the McLeod note in question was paid out of the money derived from sales of land which belonged to the children, and was deducted out of the balance which should have been paid over to the guardian. The widow, Mrs. Alexander, is entitled to no...