Monroe v. Dietenhoffer, 544

• Decision Date: 02 June 1965
• Docket Number: No. 544,544
• Citation: 264 N.C. 538,142 S.E.2d 135
• Court: North Carolina Supreme Court
• Parties: Dr. C. R. MONROE v. Miriam Lucille DIETENHOFFER, Individually and as Executrix of the Estate of Herbert J. Dietenhoffer, Deceased, and Carolina Bank.

Page 135

142 S.E.2d 135

264 N.C. 538

Dr. C. R. MONROE v. Miriam Lucille DIETENHOFFER, Individually and as Executrix of the Estate of Herbert J. Dietenhoffer Deceased, and Carolina Bank.

No. 544.

Supreme Court of North Carolina.

June 2, 1965.

Wilson, Bain & Bowen, Dunn, for plaintiff appellant.

Boyette & Brogden, Carthage, for defendant appellee Carolina Bank.

BOBBITT, Justice.

Plaintiff's allegations relate to: (1) his alleged claim against the estate of Dietenhoffer; (2) his alleged claim against Mrs. Dietenhoffer, individually, on account of her unlawful use of funds of the deceased; and (3) his alleged claim against Carolina Bank because (a) it honored checks, signed by (unauthorized) persons other than Dietenhoffer, drawn on funds on deposit to the credit of Dietenhoffer and of Dietenhoffer and Heartfield at the time of Dietenhoffer's death, and (b) it honored checks drawn on funds deposited in a special account, 'Dietenhoffer and Heartfield,' which was opened by Mrs. Dietenhoffer and in which deposits were made after the death of Dietenhoffer.

The complaint is subject to demurrer on the ground plaintiff 'improperly united' several causes of action. G.S. § 1-127(5); G.S. § 1-123; Rule 20(2), Rules of Practice in the Supreme Court, 254 N.C. 783, 802; Heath v. Kirkman, 240 N.C. 303, 306, 82 S.E.2d 104; Tart v. Byrne, 243 N.C. 409, 412, 90 S.E.2d 692; Bannister & Sons v. Williams, 261 N.C. 586, 588, 135 S.E.2d 572; Kearns v. Primm, 263 N.C. 423, 426, 139 S.E.2d 697. However, sustaining the demurrer on this ground would be without prejudice to plaintiff's right under G.S. § 1-131 to move for leave to amend his complaint so as to state separately his alleged causes of action. On the other hand, if there is a misjoinder of parties and causes of action, the action as to Carolina Bank was properly dismissed. Kearns v. Primm, supra; Bannister & Sons v. Williams, supra, and cases cited; Vollers Co. v. Todd, 212 N.C. 677, 194 S.E. 84; Lucas & Lewis v. North Carolina Bank, 206 N.C. 909, 174 S.E. 301.

Plaintiff's alleged cause of action (claim for $1,640.00) against the estate of Dietenhoffer is based on what occurred prior to Dietenhoffer's death and is determinable as of the time thereof. It is based on Dietenhoffer's receipt of plaintiff's $1,640.00 and his failure, in breach of his contractual obligations, to purchase for and deliver to plaintiff one thousand shares of N. C. Telephone Company stock.

The alleged cause of action against Mrs. Dietenhoffer, individually, is based entirely on transactions alleged to have occurred after the death of Dietenhoffer on December 20, 1959, and before the qualification of Mrs. Dietenhoffer as executrix of his estate on February 9, 1960. The sole basis upon which Mrs. Dietenhoffer, in her capacity as executrix, may be considered a proper party to this alleged cause of action and to the alleged cause of action against Carolina Bank is the fact that any recovery would pass to the personal representative of Dietenhoffer's estate for administration in accordance with law, not to the plaintiff. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253, and cases cited.

Before considering further the alleged causes of action against Mrs. Dietenhoffer, individually, and against Carolina Bank, it is noteworthy that the complaint is silent as to (1) whether plaintiff filed a claim against the estate of Dietenhoffer and, if so, whether it was allowed or denied, and (2) whether the executrix has made or purported to make a final settlement of Dietenhoffer's estate. Moreover, the complaint is silent as to what action, if any, plaintiff has taken to have Mrs. Dietenhoffer removed as executrix and to have a disinterested person appointed as personal representative in her stead.

Plaintiff's factual allegations are to the effect Mrs. Dietenhoffer, without authority, operated and business of Dietenhoffer and Heartfield from Dietenhoffer's death until her qualification as executrix on February 9, 1960, and during this period used funds ($14,109.80) constituting general assets of Dietenhoffer's estate to prefer certain creditors and to prejudice other creditors, including plaintiff, of the same class, and paid $3,491.59 to other unsecured creditors of Dietenhoffer's estate. These alleged facts are deemed sufficient to state a cause of action against Mrs. Dietenhoffer (for an undetermined amount) in behalf of the personal representative of Dietenhoffer's estate, for the benefit of creditors, including plaintiff, prejudiced by her tortious intermeddling and misapplication of assets of Dietenhoffer's estate.

Plaintiff alleges Carolina Bank had full knowledge that Dietenhoffer, at the time of his death on December 20, 1959, was the sole owner of the funds theretofore deposited in the bank in the account and to the credit of Dietenhoffer and Heartfield; and thereafter, with full knowledge of Dietenhoffer's death, honored checks against...