Lister v. Lister
| Decision Date | 24 February 1943 |
| Docket Number | 24. |
| Citation | 24 S.E.2d 342,222 N.C. 555 |
| Parties | LISTER v. LISTER et al. |
| Court | North Carolina Supreme Court |
Civil action instituted May 18, 1942, to recover on certain promissory notes.
These facts appear to be uncontroverted: Dr. E.W. Lister, brother of plaintiff, and intestate of defendants, died in the latter part of April, or first of May, 1934. Defendant M.W. Lister a brother, and defendant, Mrs. Goldie Lister Markham, a sister of Dr. E.W. Lister and of plaintiff qualified as administrator and administratrix, respectively, of the estate of Dr. E.W. Lister, deceased, on May 22, 1934.
Plaintiff in his complaint alleges these facts, among others:
That on July 14, 1932, he executed and delivered to the plaintiff, Dr. John L. Lister, his promissory note in words and figures as follows:
Plaintiff further alleges and on trial below offered evidence tending to show that said notes were duly presented to defendants, administrator and administratrix, for payment within twelve months from the date of their qualification as such administrator and administratrix, and that no intimation or suggestion from them "with respect to any contention about payment of same was made, and although payment thereof has been requested and demanded on numerous occasions, said defendants have failed to pay same".
Plaintiff further alleges: That said notes are valid obligations against the estate of intestate, are long past due and unpaid, though there are sufficient assets belonging to the estate to pay all indebtedness against it together with cost of administration; and that the defendants are indebted to him in the principal sum of each note with interest from date for which judgment is prayed.
Defendants, in their answer, while admitting the death of E.W. Lister, and their qualification as administrator and administratrix of his estate, and that "plaintiff sometime after the death of Dr. E.W. Lister made claim against these defendants upon the paper writings which he now alleges to be notes", deny all other material allegations of the complaint; and aver in substance: (1) That if E.W. Lister "subscribed his name to any paper writing or paper writings such as purport to be copied in paragraph 2 of the complaint, such subscription or signing of his name was done without the intention on the part of the latter E.W. Lister to adopt, as his own, the word "Seal" appearing after his name, according to the copies set forth in the said paragraph of the two said paper writings"; (2) that if E.W. Lister delivered "such paper writings" to plaintiff, "such delivery was without consideration *** in that the said plaintiff was a brother of the late E.W. Lister and for a long number of years had been indebted to the said E.W. Lister for money borrowed, in various large and substantial sums, and that any money or other thing of value which may have passed from the plaintiff to the said E.W. Lister on or about 19 April, 1932, and on or about 14 July, 1932, did not represent and was not *** any consideration for the said paper writings *** but that any money or thing of value delivered to the said E.W. Lister by the said plaintiff *** were *** payments by the said plaintiff to the said E.W. Lister for and on account of indebtedness theretofore due and owing by said plaintiff to said E.W. Lister, and these defendants plead such failure of consideration in bar of the plaintiff's right to recover in this action"; (3) that .
And by way of further answer and defense and for counterclaim defendants aver and say: (1) That the paper writings declared on in the complaint are not "sealed instruments" within the purview of Section 437 of N.C. Consolidated Statutes, 1919, and that any cause of action thereon is barred by the three-year statute of limitation, which is plead in bar of any recovery thereon; (2) that summons in this action issued 18 May, 1942, more than one year after the issuance of letters of administration to defendants; that claims upon said notes were not duly filed with these defendants within one year of their qualification and the issuance of letters of administration to them, nor were said claims admitted by the defendants; that the personal assets have been exhausted in the payment of debts and defendants have in hand only such funds of the estate as are sufficient to pay certain parts of secured debts, and costs of administration of the estate, upon all of which defendants plead the one-year statute of limitation, C.S. § 412, in bar of any recovery by plaintiff; (3) that more than seven years have elapsed since the date of defendants' qualification, and the making of advertisement for creditors of E.W. Lister to present their claims as required by law, in May 1934, in manner specified, and the seven-year statute of limitation, C.S. § 438, is pleaded in bar of any recovery by plaintiff; and (4) that plaintiff is indebted to estate of E.W. Lister (a) in sum of $2,000 with interest as of January 1, 1933; (b) in the sum of $224, with interest, by reason of accommodation endorsements as alleged which he had to pay, that is $122 in December, 1932, and $102 in December 1933; and (a) in the sum of $500, with interest from January 1, 1934, for services rendered in collecting certain rents; for all of which judgment is prayed by defendants.
In reply, plaintiff denies the material averments of defendants as set forth in their further defense and counterclaim, and alleges, and on trial below offered evidence tending to show: That his claim was duly filed according to law and accepted and received by, and had the approval of defendants; that, after their qualification defendants listed his claim as an item of indebtedness against the estate in inheritance tax report filed by them in 1934, and claimed and were allowed, as a deduction in settlement of inheritance tax, the amount of principal and interest as stated therein, being the same amount for which claim was presented by plaintiff to defendants, that is, the sum of $1,132.92, principal and interest then due; and that in October, 1939, defendants, with joinder of plaintiff, instituted an action in the Superior Court of Pasquotank County for the purpose of selling land to create assets with which to pay the indebtedness of the estate, including plaintiff's claim, which proceeding was pending until May Term, 1942, of said Superior Court, when defendants took a voluntary nonsuit therein, whereupon plaintiff alleges that he instituted this action "as a continuing process or action to recover his claim". Plaintiff further pleads the three-year statute of limitation, C.S. § 441, in bar of defendants' right to recover on each of the several causes of action set out in the counterclaim.
Such other evidence as was adduced in the trial court, as is necessary to proper consideration of decisive questions, will be referred to in the opinion hereinafter.
These issues were submitted to and answered by the jury as follows:
From judgment thereon in favor of plaintiff, defendants appeal to Supreme Court and assign error.
J Kenyon Wilson, of Elizabeth City, and ...
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