H. L. Vollers Co. v. Todd

• Decision Date: 15 December 1937
• Docket Number: 597.
• Citation: 194 S.E. 84,212 N.C. 677
• Parties: H. L. VOLLERS CO. v. TODD et al.
• Court: North Carolina Supreme Court

194 S.E. 84

212 N.C. 677

H. L. VOLLERS CO. v. TODD et al.

No. 597.

Supreme Court of North Carolina

December 15, 1937

Appeal from Superior Court, New Hanover County; J. W. Pless, Jr. Judge.

Action by the H. L. Vollers Company against L. D. Todd administrator of the estate of E. A. Todd, and others. Judgment of dismissal, and plaintiff appeals.

Affirmed.

This is a civil action instituted by the plaintiff to falsify and surcharge the final account of the defendant administrator and for the maladministration of the estate of E. A. Todd deceased. The plaintiff also sets out a cause of action under C.S. § 1005, and seeks to set aside certain deeds and conveyances as cited in the complaint. The original conveyance attacked, was executed by E. A. Todd, the deceased, in 1928, two years prior to his death. The defendants interposed demurrers for that there is a misjoinder of parties and causes of action. The several demurrers were sustained and the action was dismissed. To the judgment entered dismissing the action, the plaintiff excepted and appealed.

An administrator and the sureties upon his bond are the only necessary and proper parties to an action by a creditor to surcharge the administrator's final account on ground of maladministration.

McNorton & McIntire, of Wilmington, for appellant.

Robert M. Kermon, of Wilmington, for appellees L. D. Todd individually, A. F. Todd and wife, Athalia Todd individually, and Mary Alma Kermon.

C. D. Hogue, of Wilmington, for appellee Co-operative Building & Loan Ass'n.

PER CURIAM.

While the complaint does not allege two causes of action, each separate and apart from the other, as required by the rules of practice (200 N.C. 826, Rule 20, subsection 2), but alleges all of the facts as if they constituted one cause of action, it in fact states two separate and distinct causes.

1. It alleges that L. D. Todd, administrator of the estate of E. A Todd, has filed a false final account, has deducted commissions to which he is not entitled, has failed to make a fair and equal distribution of assets of the estate according to the priorities provided by statute, but that, on the other hand, he has made payments to unsecured creditors without making a ratable payment upon the claim of the plaintiff; and that the said administrator has disposed of the property of the estate to relatives at a grossly inadequate price, and that he has otherwise failed to properly discharge his duties as administrator.

2. The complaint likewise alleges that E. A. Todd (who died in 1930) on December 1, 1928, executed and delivered a deed to his real estate to his son, Albert F. Todd, and wife, Athalia (Athelye) Todd, and that this conveyance was made without consideration with intent to hinder and delay this plaintiff and his other creditors, and without reserving sufficient property to pay his then existing debts. It then proceeds to allege that thereafter Albert F. Todd and wife conveyed said lands to R. M. Kermon and wife, Annie M. Kermon, trustees that R. M. Kermon and wife, trustees, leased a portion of said property to the Texas Company; that R....