McLean v. McLean

• Citation: 88 N.C. 394
• Court: United States State Supreme Court of North Carolina
• Decision Date: 28 February 1883
• Parties: JAMES C. MCLEAN, Administrator, v. A. A. MCLEAN and others.

88 N.C. 394

JAMES C. MCLEAN, Administrator,

v.A. A. MCLEAN and others.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION upon an administration bond, tried at Fall Term, 1882, of ROBESON Superior Court, before Shipp, J.

The action was brought by the plaintiff as administrator de bonis non of D. H. McLean, against the defendant, as administrator of G. W. McLean, and the sureties upon his bond. The breach of the bond, assigned as the cause of action, is the non-payment of a judgment obtained in the superior court at fall term, 1875, against the defendant, which is as follows:

“It appearing by the complaint of the plaintiff that the defendant is justly due and indebted to the plaintiff in the sum of $455.61, and the defendant having failed to answer, it is considered and adjudged by the court that the plaintiff do recover of the defendant, administrator of G. W. McLean, the sum of $455.61,” with interest and costs.

It was admitted by the plaintiff that this judgment was founded upon a note under seal, given by the defendant, A. A. McLean, to the plaintiff, in consideration of an open account due by the defendant's intestate to the plaintiff's intestate.

The court gave judgment in favor of the plaintiff and the defendants appealed.

Messrs. McNeill & McNeill, for plaintiff .

Messrs. French & Norment, for defendants .

ASHE, J.

The plaintiff insisted the judgment was de bonis testatoris, and the defendants contend it was de bonis propriis, and this is the only question presented for determination.

We are not furnished with a copy of the note sued on, but we infer from the pleadings and admissions that it was a bond signed by the defendant, A. A. McLean, as administrator.

As a general proposition of law, an administrator cannot make any contract to bind the estate of his intestate. If he gives his promissory note to pay a debt due by his intestate, it will be binding on him individually or not at all. If the note is founded upon a sufficient consideration, as of assets applicable to the debt, or forbearance, he will be individually liable; but if there is no consideration, it will be nudum pactum. At the common law he was liable individually upon his verbal promise to pay, if there was a sufficient consideration for the promise; and although the promise be in writing, it will be of no more effect since the statute of 29 CHARLES II. than before, unless it be by deed, or there be a good consideration for it. Williamson on Executors, 1610.

It is well settled by the almost unvarying current of authorities, that the promissory note of an administrator or executor, founded upon the consideration of forbearance or the possession of assets, will be binding upon him in his individual capacity, although he should sign the note “as administrator or executor.” Williams, supra; Parsons on Contracts, 128; Woods v. Ridley, 27 Miss.; Sims v. Stilwell, 3 How. (Miss.), 176; McGrath v. Bevers, 19 S. C., 328; Sleighter v. Harrington, 2 Mur., 332; Hall v. Craige, 65 N. C., 51; Kerchner v. McRae, 80 N. C., 219.

If the promissory note of an administrator, with a sufficient consideration to support it, will be binding upon him individually, a fortiori will his bond have that effect.

There is a marked distinction between a bond and a promissory note in reference to the liability of an administrator or executor. In the case of a promissory note, given for value received, it bears only prima facie evidence of consideration, and it is open to the defendant to go into the question of consideration and show, for instance, that he had no assets, at the time of making the note, applicable to the debt of the estate for which the note was given, or that there was in fact no consideration for the promise expressed therein. But a bond is a deed, signed, sealed and delivered. It is the act and deed of the party signing it, and it imports a valid consideration. It is against all principle to suppose that...