Lyle P v. Siler

• Decision Date: 22 April 1889
• Citation: 9 S.E. 491,103 N.C. 261
• Court: North Carolina Supreme Court
• Parties: LYLE P v. SILER.

9 S.E. 491

(103 N.C. 261)

LYLE P

v.SILER.

Supreme Court of North Carolina,

April 22, 1889.

Voluntary Payment—Appeal—Record—Administrators—Appointment.

1. An overpayment made after the settlement of the estate by an executor to a legatee under the mistaken impression that the will authorized it, is not a voluntary payment, and may be recovered.

2. If the record recites that an order of publication was made on affidavit, and the publisher's affidavit shows due publication, alleged defects in the order and the affidavit on which it was issued will not be noticed on appeal if the transcript does not contain copies of them, as their regularity will be presumed.

3. Where the widow of a testator is a non-resident of the state, and for many years neglects to apply for letters of administration c. t. a. the appointment of another person as administrator is not void and his authority cannot be attacked in an action brougiit by him officially.

Appeal from superior court, Macon county; James C. MacRae, Judge.

Petition by J. M. Lyle, administrator, etc., c. t. a. of D. W. Siler, deceased, against Martha J. Siler, widow and devisee of said D. W. Siler, to sell land of said decedent to pay debts. Judgment for plaintiff, and defendant appeals.

Chas. A. Moore, for appellant. T. F. Davidson, for appellee.

Merrimon, J. This is a petition to obtain a license to sell land to make assets to pay debts of a testator. The pleadings raised issues of fact. The following is a copy of the material parts of the case settled on appeal: "The petitioner put in evidence the will of Jacob Siler, with the probate and qualification of this plaintiff, J. M. Lyle, and of T. H. Siler as executors thereof. The following facts are admitted: That plaintiff, J. M. Lyle, as executor of Jacob Siler, deceased, on the 16th of August, 1883, by mistake overpaid to D. W. Siler, who was one of the legatees under the will of Jacob Siler, the sum of $92.87 as his share under said will; that said D. W. Siler lived out of this state since 1870, and died in December, 1883; that a final settlement was made by the executor of the estate of Jacob Siler on the 16th of August, 1883; that plaintiff on the 13th day of December, 1887, took out letters of administration on the estate of D. W. Siler, deceased, with the will annexed, no letters testamentary having been issued in this state before that time; that Martha J. Siler, the defendant, is the widow and devisee under the will of D. W. Siler, and lives in Washington Territory. The defendant contended that the granting of letters of administration to the plaintiff was void, for the reason that defendant had not waived her right to take out letters. Defendant further contended that on the evidence the plaintiff had shown no debt against the estate of D. W. Siler; that the overpayment to said Siler by the executor was an officious act, and that plaintiff was not entitled to recover it. The court refused to instruct the jury to the above effect, and defendant excepted." There was a verdict and judgment for the plaintiffs, and the defendant, having excepted, appealed to this court.

The record in this case is not as full and satisfactory as it might and should be, and it fails to raise questions that it seems the appellant intended to present. The presumption is in favor of the regularity and correctness of the rulings, orders, and judgment of the court, it being one of general jurisdiction, and the burden is on the appellant to show error. It is her laches or misfortune if she fails to do so when she can. We must accept and act upon the record as it comes to us. It is not our province to assign or perfect the assignment of errors. Spillman v. Williams, 91 N. C. 483, and the cases there cited. The sheriff returned the summons unexecuted, because the defendant (the appellant) could not be found. It appeared that he was a non-resident of this state, and there was service of the summons by publication. Counsel for the defendant made a special appearance, and moved to dismiss the proceeding "for the reason that the affidavit upon which the motion for an order of publication is made, is...