Irvin v. Harris

• Decision Date: 14 December 1921
• Docket Number: 357.
• Citation: 109 S.E. 867,182 N.C. 647
• Parties: IRVIN ET AL. v. HARRIS ET AL.
• Court: North Carolina Supreme Court

109 S.E. 867

182 N.C. 647

IRVIN ET AL. v. HARRIS ET AL.

No. 357.

Supreme Court of North Carolina

December 14, 1921

Appeal from Superior Court, Rockingham County; Webb, Judge.

Action by Eugene Irvin and another, as administrators c. t. a. of H C. Harris, against W. C. Harris and others, to sell land for assets, in which various claimants were directed to file their claims. From a judgment confirming the report of a referee, the claimant, Robert Harris, Jr., appeals. Reversed.

See also, 109 S.E. 871.

Civil action heard on exceptions to the report of a referee.

H. C Harris died April 11, 1911, leaving a last will and testament, which is as follows:

"Being in my wright mind I make this my last will having destroyed all others. I will my dear wife Lou F. Harris my Home and all Furniture and table ware & all the House hold things I will her my carriage and Black horses & carriage Harness I will her my new top buggy & harness I will my daughter my Home just as it is at my Dear Wife's death just as I gave it to my wife I will Eva my Clark plantation just as it is I will my son W. C. Harris my Wells plantation just as it is I will my son W. C. Harris my entire interest in Our Factory I mean with my Bro. Robt. Harris I will that my son take good care of his mother during her life time and support her out of the factory I will W. C. Harris one pare of the best mules I have & wagon and harness I will Eva one pare of the next best pare and wagon & harness I will that W. C. Harris sell all other personally Property at Private sail & divide equally with his mother and Eva that I may have I will all money that I may have on hand equal between W. C. Harris & Eva Harris.

I mean for W. C. Harris to have my entire interest in my one half of the factory I will my granddaughter Lou Harris my Crafton lot this 8th day of March, 1899. H. C. Harris.

P. S. I will that if Eva should die without heirs all I have willed to her I will it to the heirs of W. C. Harris.

H. C. Harris.

Probated June 20, 1911, by the oath and examination of Scott Fillman, Robt. Harris, B. L. Hurdle, W. C. Harris." For many years prior to his death, H. C. Harris and his brother Robert Harris had conducted the business of manufacturing and selling tobacco in the city of Reidsville under the firm name and style of Robert Harris & Bro. In 1904, after this partnership had been formed, Mrs. Nettie Harris, wife of H. C. Harris, loaned it an amount of money which was credited to her on the books of the firm. This amount was increased from time to time until it reached $8,400, and on January 9, 1909, Robert Harris & Bro. executed to Mrs. Nettie Harris a promissory note, which was as follows:

"$8,400. One day after date we promise to pay to Mrs. Nettie R. Harris eighty-four hundred dollars. Value received, with interest at 6 per cent. per annum from date. January 9th, 1909.

[Signed] Robert Harris & Bro."

This note, which was executed in the lifetime of H. C. Harris, went into the possession of Robert Harris, Sr., husband of the payee. On October 2, 1908, Mrs. Nettie Harris was adjudged insane and committed to the Western Hospital at Morganton, where she has since remained without lucid intervals. The note, it seems, remained among the papers of her husband until March 29, 1913, when Robert Harris & Bro. (at that time composed of Robert Harris Sr., and W. C. Harris, son of H. C. Harris) drew two checks on the Bank of America aggregating $10,756 (the amount of the principal and interest of the note of $8,400) payable to the order of Mrs. Nettie Harris. These checks were delivered to Robert Harris and by him indorsed in the name of Mrs. Nettie Harris and delivered to J. H. Walker & Co. The checks were indorsed by Walker & Co., and paid by the Bank of America. After the death of H. C. Harris, the firm composed of Robert Harris and W. C. Harris conducted the business of the partnership until June 9, 1913, when the firm and the individual members were duly adjudged bankrupt by the District Court of the United States for the Western District of North Carolina. The claim of Mrs. Nettie Harris was proved by her guardian in the bankruptcy court against the new firm of Robert Harris & Bro., and credited with a dividend duly paid from the bankrupt estate.

At the time of his death (April 11, 1911) H. C. Harris was seized and possessed of several tracts of land. Although the will of H. C. Harris was probated June 20, 1911, no one qualified as his personal representative until June 30, 1913, when letters of administration with the will annexed were granted to Eugene Irvin and R. S. Montgomery. On August 28, 1915, the administrators instituted a proceeding against the devisees and beneficiaries to sell the testator's land for assets. The defendants, answering and pleading various defenses, particularly denied the alleged debts, pleaded the statute of limitations, and alleged that the claimants, or some of them, had released the old firm by accepting the new firm of Robert Harris & Bro. as their debtor. By an order of the court all claimants were directed to file with the administrators the original evidence of their claims for inspection by the defendants. When the case was called the court ordered that all matters in controversy be referred to Lindsay Patterson, Esq., with directions to report upon his findings of fact and conclusions of law. On July 28, 1914, Robert Harris, Jr., as guardian of Mrs. Nettie Harris, brought suit on her claim in the superior court of Rockingham county; but the claim was not reduced to judgment. It was presented to the referee, who, in disallowing it, made the following report:

"That exhibit 71 is a note executed by Robert Harris & Bro. to Mrs. Nettie R. Harris for $8,400 of date January 9, 1909. That no payments were ever made on this note until March 29, 1913, when the same was paid off. That the same was presented to the administrators of H. C. Harris, but was not admitted by them, and that prior to said presentment the note had been paid. That on July 28, 1914, Robert Harris, Jr., guardian of Nettie R. Harris, brought suit on said note in the superior court of Rockingham county against the administrators of H. C. Harris. I therefore find that the note was paid prior to said presentment and suit, and if not paid, but in existence, it was at the time of the suit barred by the statute of limitations. Therefore I find that Robert Harris, Jr., guardian of Nettie R. Harris, is entitled to recover nothing from the estate of H. C. Harris. I further find that at the time of the last transaction Nettie R. Harris was insane, and was confined in the State Hospital at Morganton."

His honor overruled all exceptions and confirmed the referee's report. The claimant, Robert Harris, Jr., excepted and appealed.

Thos. C. Hoyle, of Greensboro, for appellant Robert Harris, Jr.

H. R. Scott, of Reidsville, and King, Sapp & King, of Greensboro, for appellees.

J. I. Scales, of Greensboro, J. M. Sharp, of Reidsville, and H. W. Cobb, Jr., and Fentress & Jerome, all of Greensboro, for defendants.

ADAMS J.

The administrators with the will annexed of H. C. Harris filed a petition before the clerk for an order to sell land to make assets. The devisees and beneficiaries under the will, who were parties defendant, filed several answers, and the cause was thereupon transferred to the civil issue docket for trial in the superior court. The court directed all claimants to file with the administrators the original evidence of their claims for the purpose of inspection by the defendants.

Thereafter his honor referred all matters in controversy, with instruction to the referee to embody his findings of facts and conclusions of law in a report to be made at an ensuing term, and authorized those holding claims to make proof thereof before the referee. To the disallowance by the referee of the appellant's claim, exception was taken, and duly renewed before the judge upon confirmation of the referee's report.

When the case was called for argument in this court, the defendants moved to dismiss the appeal on the ground that the appellant, Robert Harris, Jr., is not a party to the suit. They rely upon Dickey v. Dickey, 118 N.C. 956, 24 S.E. 715, and Strickland v. Strickland, 129 N.C. 84, 39 S.E. 735 These cases are authority for the position that in a proceeding to sell land for assets the creditors of a decedent may not be made parties plaintiff with the personal representative. There is no order in the record which makes claimants against the decedent's estate coplaintiffs with the administrators. The order permitting them to prove their claims before the referee necessarily implied the right to introduce evidence pertinent to the issue joined as to all claims not admitted. On the hearing the creditors became actors, and their claims were subject to contest by the administrators and by the beneficiaries under the will. The proceeding, therefore, was analogous to a creditors' bill brought to prevent undue preference and to marshal the assets of the estate. It necessarily follows that the creditor, upon rejection of his claim by the referee, became for the purpose of the suit such party aggrieved as is given the right of appeal by the express terms of the statute. C. S. § 632.

The defendants contended that the note in question had never been delivered by the makers to the payee, Mrs. Nettie Harris. On October 2, 1908, Mrs. Harris was adjudged insane, and on January 9, 1909, the note which was executed by the old firm of Robert Harris & Bro. passed into the possession of Robert Harris, the payee's husband. Robert Harris, Jr. testified that he had no reason to believe that Mrs. Harris had ever seen the note. On March 29, 1913, the new firm of Robert Harris & Bro. paid the...