Haglar v. McCombs

• Decision Date: 31 January 1872
• Citation: 66 N.C. 345
• Court: North Carolina Supreme Court
• Parties: W. A. HAGLAR & WIFE and others v. R. D. McCOMBS.

66 N.C. 345

W. A. HAGLAR & WIFE and others

v.R. D. McCOMBS.

Supreme Court of North Carolina.

January Term, 1872.

1. When a father is indebted to his children, and gives them property or money at their maturity or marriage, the presumption is that this is a payment of the debt, and not an advancement. This presumption is, however, liable to be rebutted by the facts of the case.

2. If money is given to a son-in-law, under similar circumstances, or paid by the father-in-law as surety, the same rule applies.

3. If a father, while acting as executor, receives into his possession a number of slaves bequeathed to his children, and afterwards sells one of them, and retains and controls the others until their emancipation; Held, that in an action for an acconnt for the hire of said slaves, &c, it shall be determined, as a fact, whether he converted or intended to convert the slaves to his own use, or whether he held them as trustee or bailee for his children. If the former, a debt is established, and the presumption above referred to applies-- otherwise it does not.

4. A trustee is generally entitled to commissions, but when a person is trustee by reason of his being executor, and voluntarily assumes control of a fund willed to minor children, he not being their guardian he is not entitled to commissions.

5. A father is bound to support his children if he has ability to do so, whether they have property or not, and he is not entitled to any credit for such support in a settlement of accounts between them and himself.

6. In an action for an account, against an executor, the personal representative and not the children of a deceased legatee, should be made a party.

Taylor v. Lanier, 3 Mur. 98. Walker v. Crowder, 2 Ired. Eq. 478, cited and ap-approved.

N. B. The transcript sent to this Court does not show before whom this case was tried, but inasmuch as it was filed during the term, and Judge Cloud presided at the last term of Cherokee Court, it is presumed that it was tried by him.

This was an action tried before Cloud, Judge, at Fall Term, 1871, of Cherokee Superior Court.

This action was brought by the plaintiffs against the defendant, seeking to charge the estate of the intestate, Abram Sudderth, with the value of certain slaves and the hire of other slaves, which they allege were willed to them by their grand-father John Hennessee. They claim the slaves and other property under two clauses of the will of said Hennessee, which are set out in the opinion of the Court. The plaintiffs, Sarah, wife of Haglar, Margaret, wife of Howell, Ailsey, wife of Hyde, Judy, wife of Dean, are the grand children of Hennessee and the children of Abram Sudderth by a former marriage, and the plaintiffs Wallis, Victoria, Abram and Jacob Williams, who sue by guardian, are the children of one Excey Williams, deceased, who was likewise a grand daughter of said Hennessee and a child of Abram Sudderth.

The defendants are the administrators of Abram Sudderth, deceased, his widow, who was his second wife, and a daughter of the second marriage, and her husband.

In the progress of the trial, the case was referred to auditors for an account. They made a report to Fall Term, 1870.

Various exceptions were filed to the report by both plaintiffs and defendants. His Honor sustained the exceptions made by the plaintiffs, and overruled the defendants'.

Plaintiffs moved for judgment according to the report modified by their exceptions. His Honor refused to give judgment, and each party appealed to the Supreme Court.

The exceptions to the report, and all other facts material to the case are fully stated in the opinion of the Court.

Erwin and Folk for plaintiffs .

Phillips & Merrimon and Dupre ??

RODMAN, J.

Plaintiff's case: John Hennessee died in 1843, leaving a will by which he bequeathed among other things as follows:

“Item 4. I give Abram Sudderth's children, my grand-children, the one half of my negroes remaining after the above bequests are taken out, and also the boy my wife has during her life time.”

He likewise by item 6, gave his said grand children a share in the residue of his estate. Abram Sudderth and Patrick Hennessee were appointed executors.

The plaintiffs, Sarah, wife of Hagler, Margaret, wife of Howell, Ailsey, wife of Hyde, and Judy, wife of Dean, are the grand children referred to in the will, the other plaintiffs are children of Excey, one of the grand children of the testator who died after him.

The complaint states that Abram Sudderth, under the above bequests to his children, received several slaves, one of which he sold for $1000, which he invested in part payment for a piece of land purchased in his own name for about $7000. It also makes Lycurgus Howell and his wife Adlee, who is a daughter of Abram Sudderth by his second marriage parties defendant. The administrators of Abram Sudderth are also defendants, but no account of his estate is asked for. The plaintiffs seek to charge his estate with the value of the negroes which he received from the estate of their grand-father and sold, and with the hire of the other negroes which he kept in his possession until their emancipation.

Defence:

1. The principal defence is that Abram Sudderth during his life time delivered to the femes plaintiffs at or after their marriages, negroes or other property, the value of which should be deducted from the debts claimed by the plaintiffs.

2. That as the claims of the plaintiffs are several, they cannot sue jointly.

3. The administrators of Abram Sudderth say they have no assets.

4. Lycurgus Howell and wife say they ought not to be parties, as they have no interest in the controversy. By consent it was referred to auditors to state an account of the property received by Abram Sudderth under the bequests of the will of Hennessee, and of the property and money given by him to his children during his life.

An account was accordingly taken, by which it was found that Abram Sudderth had received property of his children amounting, according to the mode of taking the account, adopted by the auditors, $6,580.82, and that he had given to the children as aforesaid, different sums, to some less, and to others more, than their proportionate shares of the above.

Both parties excepted.

Before proceeding to the exceptions, however, it will be well to notice some points which are independent of the main questions, and of the mode of taking the accounts.

1. Upon the showing of the plaintiffs, the children of Excey are not proper parties. They can assert no claim to her property in action, except through her personal representative. The complaint should be amended in that respect by making her administrator a party in lieu of her children.

2. It is clear that no recovery can be had against the administrators of Abram Sudderth in the face of their denial of assets, without an account being taken of their administration. 3. Such an account being necessary, Lycurgus Howell and his wife, and also the widow of Abram Sudderth are proper parties because they are interested on the account.

4. Although the plaintiffs, if they recover at all, will each have a separate judgment in his favor, yet they are tenants of a common fund, and the judgments to be given will affect them all. They are all therefore properly made plaintiffs.

Having thus cleared the case of these minor questions, I return to the exceptions.

The plaintiff's exceptions may be reduced to two:

Exception 1. That the property and money given to them by their father in his life time, was given by way of advancement, and cannot properly be set off in abatement of their present claims which are debts.

Answer. That would be true, if it appeared that the supposed gifts had been professedly made as gifts or advancements. A debtor may undoubtedly make a gift to his creditor, and leave the debt unpaid. In the case of a delivery of money or property by a debtor to a creditor without consideration at the time, they being strangers, the presumption would be very strong that such transfer was not a gift, but a sale or payment. And although undoubtedly in the case of a transfer under such circumstances by a parent to a child, the presumption would be more easily rebutted, yet we think upon the naked facts, the presumption must be against its being a gift. In the present case, it is a question to be determined upon the circumstances, whether the property and money put in posssession of the plaintiffs, or paid to or for them, was intended by the father as a payment of a debt which he owed them, or as a gift which still left the debt unpaid. There is no direct finding upon this question, nor any direct evidence upon it. In fact the question itself is not anywhere distinctly stated. It seems to be assumed that the supposed gifts were intended as advancements. In the absence of all direct evidence, and of circumstances other than those stated, we think the presumption would be that the father intended to pay his children what he owed them, rather...