Bean v. Bean

• Decision Date: 19 April 1904
• Citation: 136 N.C. 92,47 S.E. 232
• Parties: BEAN . v. BEAN.
• Court: North Carolina Supreme Court

47 S.E. 232

136 N.C. 92

BEAN .

v.BEAN.

Supreme Court of North Carolina.

April 19, 1904.

EXECUTORS — ACCOUNTS — EFFECT—ESTOPPEL — CREDITS—EXPENDITURES FOR LEGATEES —IMPLIED PROMISE OF REPAYMENT.

1. Under Code, § 1399, requiring executors to file annual accounts with the clerk of the superior court, giving the clerk power to examine the executor or any other person concerning thereceipts and disbursements, and making his approval of the account prima facie evidence of its correctness, the account so filed and approved by the clerk, while prima facie correct, is no more conclusive than an account stated, and the executor is not estopped to impeach it in another proceeding.

2. An executor, whose wife is the residuary legatee under the will of the testator, is not entitled to credits for sums paid for taxes on his j wife's land, or for money paid to defray his; wife's expenses on a trip.

3. Where a husband, acting as executor under a will in which his wife was named as residuary legatee, paid taxes on his wife's land, and defrayed her expenses on a trip, as he was under no legal obligation to make such expenditures, the law would not imply a promise on the part of his wife to repay him.

Appeal from Superior Court, Bowan County; W. E. Allen, Judge.

Action by Mary A. Bean against M. L. Bean. Prom a judgment for plaintiff, defendant appeals. Affirmed.

John S. Henderson, for appellant.

A. H. Price, Walter Murphy, and Theo. P. Kluttz, for appellee.

WALKER, J. The plaintiff, who is the j wife of the defendant, is the residuary legatee under the will of Nancy Smith, and the defendant is the executor of the latter, and qualified as such in March, 1889. On December 22, 1896, the plaintiff caused a citation to be issued by the clerk of the superior court to the defendant to appear at a time stated in the notice and file an account under sections 1399 and 1400 of the Code. The defendant appeared and filed the account, and insisted before the clerk that he was entitled to two credits, one for taxes paid by him "for the benefit of the plaintiff" on her land for the years 1892 to 1896, both inclusive, amounting to $775, and the other for money paid by him to R. J. Holmes to defray the plaintiff's expenses to Baltimore. The clerk disallowed these claims, and, upon auditing the account, found that defendant owed the estate a clear balance of $406.45. The plaintiff thereupon brought this action in the superior court to recover said balance.

There is some reference in the case to other legacies which had not been paid, and it does not appear, except by inference, whether the $406.45 is due to the estate merely for distribution among the several legatees, or is due to plaintiff, after paying all claims and legacies and the costs and expenses of administration. The plaintiff, though, sues for this balance, and the defendant, in his answer, admits that it is due to the plaintiff, anless he is entitled to the said credits. The court ruled that the defendant could not successfully assert his claim, "because he was estopped to deny the adjudication of the clerk." The ruling of the court was correct—that is, its conclusion—but the reason given therefor was not. The defendant was not estopped by the proceeding before the clerk. The account as filed and stated in response to the citation had no more force or effect against him man the account would have had if he had filed it voluntarily. The statute expressly provides that "it shall be deemed prima facie evidence of...