Evans v. Smith
| Decision Date | 31 January 1881 |
| Citation | 84 N.C. 146 |
| Court | North Carolina Supreme Court |
| Parties | J. A. EVANS, Adm'r, v. THOMAS M. SMITH, Ex'r. |
OPINION TEXT STARTS HERE
SPECIAL PROCEEDING for an account and settlement commenced in the probate court and heard upon exceptions to referee's report at Fall Term, 1879, of COLUMBUS Superior Court, before Seymour, J.
Upon the hearing of the case, the court overruled the exceptions and the defendant appealed.
Mr. A. T. London, for plaintiff .
Mr. T. H. Sutton, for defendant .
Bythel Rouse died in the year 1859, leaving a will in which he bequeathed his entire estate, subject to the payment of debts, to Betsy Sellers, who afterwards became the wife of the defendant, and died intestate; and this action, instituted March 17th, 1875, in the probate court of Columbus county, against the defendant, the executor, is for an account and settlement of the testator's personal estate in his hands, and for the recovery of said legacy. The defendant moved, upon several grounds, to dismiss the proceedings, and, his motion being denied, put in his answer, and set up various defences, to-wit:
1. The want of jurisdiction in the probate court.
2. The bar of the statute of limitations.
3. The auditing of the administration account by the county court in the year 1864.
4. A prior adjudication in other similar suits of the subject matter of the action; and
5. The conversion of the estate into confederate money at the instance of the legatee and her husband, and their subsequent refusal to receive it, whereby it had been lost, and the defendant absolved from liability therefor.
Upon the coming in of the answer and the refusal of the court to dismiss for the matters therein set out, the defendant appealed to the judge of the superior court, who on the hearing sustained the judgment of the probate court and ordered a reference to the clerk to take and state the account of the defendant's administration of his testator's estate. The clerk made his report at fall term 1876, where without further action it remained until spring term 1878 when it was recommitted with instructions to the referee to state the account in detail, distinguishing between the receipts and disbursements in confederate and other currency and report the evidence in reference thereto. At the ensuing term the referee again reported the account with the evidence accompanying it, showing to be due from the defendant with interest computed to September 23d, 1878, in confederate money $720.97, and in other currency $2,929.05.
Many exceptions were taken by the defendant's counsel from the judgment overruling which he appeals to this court. These exceptions will be considered and disposed of in the order in which they are enumerated in the record:
1. The defendant is charged with interest on all the moneys received, from the respective dates of each.
The exception is overruled upon the authority of the cases of Pickens v. Miller, 83 N. C., 543; and McNeill v. Hodges, Ib., 504.
2. Interest is erroneously charged upon the confederate money offered to the legatee and her husband in 1864, and refused, from which time it should cease.
This exception is dependent upon another, in regard to the allowance of the principal sum as a credit, and will be considered in connection with that.
3, 4 and 5. These exceptions relate to interest and fall within the principle applied to the first exception.
6. The referee, while he charges the defendant with all funds coming into his possession, disallows a credit for the sum of $1722, the balance ascertained to be due in the audited account, and which, collected by the direction of the legatee, with her husband's assent, he, as her administrator, when the same was tendered in February, 1864, refused to receive towards the legacy.
While the testimony is conflicting, the weight of it is to the effect that while the defendant was not disposed to reduce solvent securities into a depreciating confederate currency, he was required by the legatee with the privity, if not the approval of her husband, in 1862, to collect and pay over the legacy; and that he proceeded to do so, and was prepared with the funds to pay over the sum found by the auditors to be due, as soon as they made their report in February, 1864, and that the plaintiff refused to accept the money. The defendant swears to these facts. The plaintiff admits the offer of settlement and his declining it, because of his duties in the military service. Another witness who was present, testifies to the defendant's proposal to settle with the plaintiff, at that interview, and to his having money, and that the defendant refused to take it, saying he would take gold and silver, or the new...
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