Grant v. Hughes

• Decision Date: 28 February 1886
• Citation: 94 N.C. 231
• Court: North Carolina Supreme Court
• Parties: J. W. GRANT, Adm'r, v. W. H. HUGHES, Ex'tr.

94 N.C. 231

J. W. GRANT, Adm'r,

v.W. H. HUGHES, Ex'tr.

Supreme Court of North Carolina.

February Term, 1886.

CIVIL ACTION, tried before Graves, Judge, at Spring Term, 1885, of the Superior Court of NORTHAMPTON county.

It appears that in the month of July, 1861, John M. Calvert, of the county of Northampton, died intestate in that county, and on the first day of September of that year, Samuel Calvert was duly appointed and qualified as administrator of his estate, and took possession thereof.

Afterwards, Samuel Calvert, of the same county, died therein, in the year, 1881, as was at first supposed, intestate, and the defendant W. H. Hughes, was appointed administrator of his estate. Afterwards, however, it was discovered that he left a will, which was duly proven, and the defendant duly qualified as executor thereof.

Before the beginning of this action, the plaintiff was appointed and duly qualified as administrator de bonis non of the first above named John M. Calvert, on the 27th day of December, 1881.

This action was brought on the 28th day of December, 1881, to compel an account and settlement of the estate of the intestate of the plaintiff, that came, or ought to have come, into the hands of Samuel Calvert, his administrator, now deceased, of whose will, the defendant is executor, and to recover such sum of money as may be ascertained to be due to the plaintiff.

The defendant, in his answer, admits the facts above stated, and pleads matter of defence as follows:

“And for a further defence to said action, and as a plea in bar thereto, the defendant says that his testator, the said Samuel Calvert, has fully administered the said estate of John M. Calvert, which came into his hands. That he has collected all of the assets belonging to said estate that could be collected; that he has paid all of the debts due by said estate; that he has paid over the balance in his hands to those who were entitled to receive the same, to-wit: the widow and children of the said John M. Calvert; that he has filed his final account of his dealings with said estate in the Probate Court of Northampton county, on the first day of June, 1874, together with his vouchers, and also the amounts advanced as aforesaid, together with the vouchers for the same; that said final account was examined and approved by N. R. Odom, Probate Judge of Northampton county, and entered of record in said court; and the said vouchers filed therein, on said first day of June, 1874; that the same was in all respects full and fair and correct; that on said final accounting, there was a balance ascertained to be due said estate of $7,528.24, which belonged in equal parts to the widow and the two children of said John M. Calvert, they being his only heirs; that a large portion of said balance arose from the sale of the Rix and Underwood tracts of land, to-wit: $1,750 and $1,076.08, which said tracts of land have been claimed by, and are now in possession of the heirs of said John M. Calvert, and ought to be credited in favor of defendant.

That of said balance there was found to be due the widow, on said final accounting, the sum of $1,266.84 of her third part, she having received the rest that was due her, as was shown by the vouchers filed as aforesaid; that of her third part of said balance, it was ascertained that E. V. Calvert, one of the children, had been paid the whole, and was in debt to the said Samuel Calvert in the sum of $226.31; that of his third part of said balance, it was ascertained that Matt. Calvert, the other of the said children, had been paid the whole by the said Samuel Calvert, and was in debt $1,314.54; that since said final accounting, the said Samuel Calvert has received on the claim against Motley & Bowers, for the stock of goods sold them, and which claim the said administrator thought at the time could not be collected at the date of said accounting and as reported, the sum of about $1,000, and out of said sum has fully paid off and discharged the balance due the widow as aforesaid, and has fully settled with the children for their part of the same; that the estate came into the hands of his testator during the uncertain period of the war, when it was difficult to make collections, and defendant alleges that the large balance, and the credits realized by his testator, and with which he charged himself in said final accounting, to-wit: the sum of $20,716.15--shows great diligence on his part, and places his administration of the estate above suspicion; that many of the bonds and accounts were insolvent by reason of the war, and the amounts realized on them sometimes the result of troublesome litigations; that the plaintiff's cause of action arose more than three years before the bringing of this action, and defendant pleads the statute of limitations; that the plaintiff's cause of action arose more than six years before the bringing of this action, and defendant pleads the statute of limitations.

This action was not commenced within ten years after the cause of action accrued, and the defendant expressly pleads the statute of limitations.”

To this part of the answer, the plaintiff replied as follows:

“The plaintiff, replying to the new matter set out in defendant's answer, says:

1. That the facts set out in allegation No. 8 are not true, save and except so much thereof, as states that the said Samuel Calvert did, after said so-called final account, collect $1,000 on account of said estate; and the plaintiff further alleges, that at the time said final account purports to have been filed, to-wit: on June 1st, 1874, the widow of John M. Calvert was dead, and had been dead for a long time, to-wit: since the year 1868; and no administration was ever taken on her estate; that Matt Calvert, one of the children of said John M. Calvert, died before said account purports to have been filed; and no administration was taken out upon the estate of said Matt Calvert, until after the death of defendant's testator, to-wit: in 1873; and that the child of said John M. Calvert, to-wit: Virginia Calvert, was a minor under the age of twenty-one years at the time said final account purports to have been filed; and was under the age of twenty-one years at the time of the death of said Samuel Calvert.”

It was admitted that the widow of John M. Calvert died in May, 1872; that Matt Calvert, one of the children, died in March, 1874; that E. V. Calvert, the other child, (now Mrs. Moore), was born July 6th, 1860; that no administration has ever been taken out upon the estate of the widow; and none upon the estate of Matt. Calvert, until after the death of Samuel Calvert, said administration being taken out on the 27th day of December, 1881; that plaintiff qualified as administrator de bonis non upon the estate of John M. Calvert before the commencement of this action; that Matt. Calvert was born the 1st of January, 1850; and that the said widow, Matt. Calvert and E. V. Calvert (now Mrs. L. L. Moore), were the only heirs and distributees of John M. Calvert.

In support of his plea in bar of an account, the defendant introduced in evidence to the Court, the account filed by Samuel Calvert on the 1st day of June, 1874, before the Probate Judge. No other testimony was introduced by plaintiff or defendant.

Plaintiff's counsel then said that his Honor could decide from the pleadings, admissions and inspection of said account, whether the plaintiff were entitled to the judgment demanded by him, to...