Grant v. Rogers

• Decision Date: 28 February 1886
• Citation: 94 N.C. 755
• Court: North Carolina Supreme Court
• Parties: J. W. GRANT, Administrator, v. W. J. ROGERS, Administrator.

94 N.C. 755

J. W. GRANT, Administrator,

v.W. J. ROGERS, Administrator.

Supreme Court of North Carolina.

February Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried before Avery, Judge, at Spring Term, 1884, of the Superior Court of NORTHAMPTON county.

The defendant appealed.

The facts are fully stated in the opinion.

Mr. T. N. Hill, for the plaintiff .

Mr. W. C. Bowen, for the defendant .

SMITH, C. J.

The case made in the complaint, and constituting the plaintiff's cause of action, is this:

Edward J. Turner, alleged to be a resident of Northampton county, in this State, died intestate in the year 1858, possessing both real and personal estate therein, and at March Term, 1859, following, the County Court of said county, granted administration on his estate to Thomas B. Powell, who thereupon entered into bond, in the penal sum of thirty thousand dollars, in the form and with the conditions prescribed by law, to which Joseph M. S. Rogers and J. M. Rogers became and were accepted as sureties. By virtue of these letters, the said Thomas B. Powell acquired possession of assets of large amount, and also received rents of land, and the proceeds of the sale of land, made under an order of Court, and paid over to him, to be applied by him in a due course of administration, for none of which has he ever accounted, nor made any return. Thomas B. Powell died in 1877, and letters of administration de bonis non, on the estate of the intestate, Edward J. Turner, were, on April 1st, 1879, issued from the Probate Court of said county, to the plaintiff.

The surety, Joseph M. S. Rogers, having also died intestate, administration on his estate was committed to the defendant W. J. Rogers.

The present action was commenced on April 1st, 1879, by the issue of a summons against the living, and the administrator of the deceased surety to the bond, for the recovery of the assets of the intestate, which were, or ought to have been, in the hands of his deceased representative, and with which he is chargeable in this State. The Sheriff's return on the process, “served April 3rd, 1879, by making known to the defendant,” (using the singular number,) “the contents of this summons,” leaves it uncertain whether the service was on both, or if on one only, which of the defendants, but as an answer is filed by the administrator of the deceased surety only, and no notice is taken of the failure of the other defendant to answer, in the progress of the cause, we must deem the action to be prosecuted only against the former.

The answer of W. J. Rogers, administrator, while controverting most of the material allegations of the complaint, denies that the intestate Turner was a resident in this State, and declares that before, and at his death, his domicil had been, and was, in the adjoining county of Southampton, in Virginia, where were his large real and personal estate possessions, and soon after his death, letters of administration were granted by the proper court in that county to the said Thomas B. Powell; that as a means of perfecting this primary administration of domicil, he also took out administration in Northampton, but what amount of assets may have been received under the latter grant, is unknown to the defendant. As a further defence, and in bar of a right to an account, the defendant alleges, that in a suit in the court of chancery in Southampton county, in which the said Thomas B. Powell, and the creditors and next-of-kin of the intestate Turner, were made parties, there was a decree for an account against the administrator, and an order of reference executed, ascertaining the value of the assets, as well personal as derived from the sale of land, and the extent of the intestates indebtedness.

That in this proceeding, a final decree was made, directing the payment of the debts reported to be due, and the distribution of the surplus among the parties entitled thereto, which has been fully performed by the said administrator.

The answer also sets up the bar of the statute of limitations, and insists further, that the grant of administration to the plaintiff, is void, for want of bona notabilia in Northampton county to confer jurisdiction upon the Court, to order the issue of letters.

Without adverting to the pleadings, further than to note the misdescription in the answer of the proceeding in equity, drawn from memory, in that the record shows it to have been a creditor's suit, prosecuted against the administrator, the widow, and the infant child of the deceased, as his next of kin, with the result, however, properly set out in the answer, we proceed to consider the controversies raised.

At Spring Term, 1884, issues were prepared, and by agreement, submitted to the Judge in place of a jury, which, with his findings in response, are as follows:

I. Was Edward J. Turner a resident of Northampton county, as is alleged, or was he a resident of Virginia?

Answer--He was a resident of Southampton county, Virginia, where he died.

II. Was Thomas B. Powell duly appointed in the county of Southampton, administrator of Edward J. Turner?

Answer--He was.

III. Did Edward J. Turner, at his death, leave real and personal property in said Southampton county?

Answer--He did.

IV. Did said Powell, after his qualification in Virginia, in order to administer the personal property of the intestate in Northampton, qualify also as such, in this county?

Answer--He did.

V. Were there, on April 1st, 1879, any asssts of said intestate in Northampton county?

VI. Were any debts outstanding, at the date last mentioned, against the intestate's estate?

VII. Are the heirs and distributees of the intestate, residents of Virginia?

VIII. Did said Thomas B. Powell, as administrator of the intestate, in or about the year 1860, bring suit in the Court of Equity in Southampton county and file a petition against the next of kin and creditors of the deceased, for an account and final settlement of his estate, wherein said creditors and next of kin were made parties and duly served with with process; and was said suit conducted to a final hearing, according to the laws of Virginia?

The Court being of opinion that the 5th and 6th issues contained no matters, however answered, barring an account, declined to pass on them. To this the defendant excepted.

In reference to the remaining issues, without any response thereto, the Judge directed the following entry to be made: “The counsel for the defendant proposed another issue, numbered 8, which was entered on the record, and stated that they had no evidence bearing upon that issue, except a transcript of the record of the Court of Equity of Southampton county.”

The evidence was received, and it was adjudged that the 8th issue presented matter for the Court, and the question arising thereon was reserved by the Court.

The foregoing case, prepared by the appellant, was objected to on the part of counsel for the appellee, for certain insufficiencies of statement, which but for the fact, that if supplied as proposed, the result would not be changed, in the view we take of the appeal, would compel us to remand the cause, in order that the differences be considered and adjusted by the Court.

The Court ruled, that as the first administrator died in 1877, and the present plaintiff obtained letters de bonis non, on April 1st, 1879, and at once began the action, there was no statutory bar to its prosecution, and proceeded at the plaintiff's instance, and against the defendant's objection, to make an order of reference for the taking an account of the administration by the said ...