Jones v. Wooten

• Decision Date: 28 February 1905
• Citation: 137 N.C. 421,49 S.E. 915
• Court: North Carolina Supreme Court
• Parties: JONES et al. v. WOOTEN.

49 S.E. 915

137 N.C. 421

JONES et al.

v.WOOTEN.

Supreme Court of North Carolina.

Feb. 28, 1905.

EXECUTORS—ACTION FOR ACCOUNTING—PLEA IN BAR—SUFFICIENCY—REFERENCE—APPEAL.

1. On the death of an executor and the appointment of an administrator de bonis non with the will annexed, such administrator is the proper person to call on the administrator of the deceased executor to account for any funds remaining in the hands of the deceased executor belonging to the estate of the testator.

2. Where an administrator de bonis non with the will annexed was sued by alleged legatees of the testator, who averred that the testator's original executor had died without having fully administered the testator's estate, that plaintiffs had requested the defendant to require the administrator of the deceased executor to account, and that he had refused, a plea by the defendant that a full and complete accounting and settlement to and with each other for and on account of any money, goods, and chattels belonging to the estate of the testator which went into or should have gone into the hands of his original executor had been had between himself and the administrator of the deceased executor, and that in such settlement the correct balance was ascertained and payment made, constitutes a good plea in bar ofthe action, and hence it was error to order a reference before disposition was made of the plea.

3. An order of reference made before disposition of a plea in bar of an action is one from which an appeal can be immediately taken.

Appeal from Superior Court, Greene County; Councill, Judge.

Action by Alice Jones and others, by their next friend, George Heath, against John L. Wooten, administrator d. b. n. of Travis Hooker, deceased, and others. From an order of reference, defendant appeals. Reversed

Jarvis & Blow, for appellant Geo.

M. Lindsay and Moore & Fleming, for appellees.

HOKE, J. It appears from the pleadings that John H. Freeman, having made his will, died in the county of Greene in December, 1885; that Travis E. Hooker qualified as his executor on December 31st of the same year, and proceeded to administer on said estate; that Travis E. Hooker died in March, 1887, about 14, months after his qualification as executor, and without having fully administered the estate. After the death of Hooker, John Sugg was appointed and qualified as administrator d. b. n. with the will annexed of John H. Freeman. J. Q. Jackson was appointed and qualified as administrator of Travis E. Hooker, and in due time settled his estate, filed his final account and was discharged, and has since died. Before the present action was begun, the defendant John T. Sugg was appointed as second administrator d. b. n. of said John Freeman, and the defendant Wooten was appointed administrator d. b. n. of said Travis Hooker. The plaintiffs are special legatees under the will of John H. Freeman, whose legacies are made a primary charge on bis personal estate and a secondary charge on his real estate, and bring this suit against J. T. Sugg, administrator d. b. n. of John H. Freeman, and John L. Wooten, administrator d. b. n. of Travis E. Hooker, and others, alleging

(1) that their legacies have never been paid;

(2) that Travis E. Hooker, as executor of John H. Freeman, had received large sums of money for which he had never accounted; and (3) that John Sugg, former administrator d. b. n. of John H. Freeman, had negligently and wrongfully failed to call him to account; that such accounting was necessary to the recovery of their legacies; and that before bringing this suit they had demanded of the defendant John T. Sugg, the present administrator d. b. n. of John H. Freeman, that he bring suit against the defendant Wooten to recover from him the amount due from Travis E. Hooker's estate to the estate of John H. Freeman, and that he had refused to comply with such demand. The defendant answered, denying the principal allegations of the complaint and John L. Wooten specially answered that there had been a full, true, and complete accounting between his predecessor in office, J. Q. Jackson (former administrator of Travis E. Hooker), and John Sugg, who was then administrator d b. n. of John H. Freeman; that a balance had been struck finding a small amount due from the estate of Freeman, which said amount had been paid, and all claims against the estate of Travis E....