Dunn v. Beaman

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: Dunn v. Beaman, 126 N.C. 766, 36 S.E. 172 (N.C. 1900)
• Decision Date: 29 May 1900
• Parties: DUNN. v. BEAMAN et al.

126 N.C. 766

36 S.E. 172

DUNN.

v.BEAMAN et al.

Supreme Court of North Carolina.

May 29, 1900.

EXECUTORS AND ADMINISTRATORS—CLAIMS— REFERENCE — CREDITORS' BILL — ARBITRATION — AWARD — WITNESSES — GUARDIAN — INDEBTEDNESS TO WARD—LIMITATIONS.

1. Code, § 1448, authorizes a creditor of a deceased person to sue his personal representative on behalf of himself and all other creditors, and section 1426 allows an executor or administrator to arbitrate disputed claims against his decedent's estate. Held, that the proceedings authorized by section 1426 were between the creditor and personal representative in the ordinary course of administration only, and hence an award in a proceeding under such section, brought after the filing of the creditors' bill under section 1448. was properly disallowed in the creditors' suit.

2. That decedent's administrator and children were made parties defendant in the creditors' suit did not authorize them to refer a claim by the children against the estate to arbitration, as authorized by Code, § 1426, and require the referee in the creditors' action to allow the award made on such reference.

3. Code, § 590, declares that a person interested in an action or proceeding shall not be examined in his own interest against the personal representative of the deceased person concerning a personal transaction or communication between the witness and the deceased person, unless such executor and administrator is first examined respecting the same. Held, that children seeking to charge their deceased father's estate with proceeds arising from a sale of land as guardian were incompetent to prove his nonpayment of the indebtedness or failure to inform them respecting the same.

4. Where a father, as guardian of his children, filed a bill with three of them for partition of lands devised to them, and the land was sold under a decree, the children were charged with notice thereof, and hence were not entitled to claim the proceeds of the sale from the father's estate as against his creditors after the period of limitation had run against the claim, on the ground that his con cealment of his indebtedness amounted to constructive fraud.

Faircloth, C. J., dissenting.

Appeal from superior court, Sampson county; Timberlake, Judge.

Bill by W. A. Dunn, receiver, against M. R.. Beaman, administratrix of the estate of J. R. Beaman, deceased, and others, to subject real estate to the payment of debts. From a judgment in favor of defendants, the receiver appeals. Reversed.

R. O. Burton and H. G. Connor & Son, for appellant.

Allen & Dortch, J. D. Kerr, Marion Butler, and F. R. Cooper, for appellees.

CLARK, J. This proceeding was begun by a creditor of John R. Beaman, deceased, on the 23d of February, 1894, against the administratrix of said Beaman and his heirs at law to procure a settlement of his estate, and to subject his realty, under the provisions of Code, § 1448. At February term, 1895, a referee was appointed "to ascertain the indebtedness of the estate and the parties to whom it was due." Some time after this action was begun, the children of John R. Beaman, claiming that their father was indebted to them in the sum of $10,725, with interest thereon from July 15, 1861, for proceeds of realty, which, as the guardian of some of them, he had procured to be sold, agreed with their co-defendant and sister, the administratrix, to refer the claim under Code, § 1426. The referees reported on April 1, 1896, allowing the claim in full, although three of the children were of full age at the time of the sale in 1861, and parties to the proceeding under which the land was sold. The referee in this action properly disallowed the claim based upon such award under Code, § 1426, and ruled that, after one creditor has instituted a creditors' bill, he cannot be cut off from contesting another creditor's claim, and pleading the statute against it, by a collateral proceeding between the administratrix and such other creditor. The proceedings authorized by section 1426 are between a creditor and the personal representative in the ordinary course of administration, and have no application when an action has been begun under Code, § 1448, to take the administration into the hands of the court, which thereupon appoints the referee to ascertain the indebtedness, and a commissioner to sell the property, and takes in hand the settlement of the estate. Besides, the children and heirs at law of Beaman, as well as the administratrix, who assented to the attempted reference, were parties defendant in this action, and bound by the reference herein to determine the indebtedness. However, that side is not appealing, and the rejection of the attempted award of April 1, 1896, is not really before us upon any exception. The referee allowed the claim of those five of the eight children who were wards of Beaman at the time of the sale, and that brings upthe question of the statute of limitations, the decision of which in favor of the plaintiff renders it unnecessary to discuss his exceptions to the admission of evidence. It is proper, however, to say that the children seeking to prove their claims against the estate of John R. Beaman were incompetent, under Code, § 590, to prove nonpayment of the indebtedness to them by their father, or that he never informed them of this indebtedness, and it was error to admit their testimony.

The referee finds as facts that on February 19, 1861, John R. Beaman qualified as guardian of his five minor children; that at February term, 1861, as their guardian, and with the joinder as parties with him of his three adult children and their husbands, he filed a petition for sale for partition of 1, 350 acres of land, which had been devised to his said children by one Carraway. The property was sold at the price of $10,800 to one Cobb, who paid the purchase money, netting $10,725 after deducting court costs, to the clerk and master, who executed a deed...