Rudisill v. Hoyle, 598

• Court: North Carolina Supreme Court
• Writing for the Court: MOORE
• Citation: Rudisill v. Hoyle, 118 S.E.2d 145, 254 N.C. 33 (N.C. 1961)
• Decision Date: 03 February 1961
• Docket Number: No. 598,598
• Parties: Helen Crutchfield RUDISILL, Della Mae Trotter Kernodle, and Eugene G. Shaw, Administrator, c.t.a., d.b.n., of The Estate of J. M. Crutchfield, v. Lawrence T. HOYLE, Executor of the Estate of Pearl Trotter Crutchfield and Guilford National Bank of Greensboro, Trustee Under the Will of Pearl T. Crutchfield.

Page 145

118 S.E.2d 145

254 N.C. 33

Helen Crutchfield RUDISILL, Della Mae Trotter Kernodle, and Eugene G. Shaw, Administrator, c.t.a., d.b.n., of The Estate of J. M. Crutchfield, v. Lawrence T. HOYLE, Executor of the Estate of Pearl Trotter Crutchfield and Guilford National Bank of Greensboro, Trustee Under the Will of Pearl T. Crutchfield.

No. 598

Supreme Court of North Carolina.

Feb. 3, 1961

Sapp & Sapp, Greensboro, for Lawrence T. Hoyle, Executor, appellant.

Eugene G. Shaw and Frazier & Frazier, Greensboro, for plaintiffs, appellees.

Chas. M. Ivey, Jr., Greensboro, for Guilford National Bank of Greensboro, Trustee, appellee.

MOORE, Justice.

The record does not disclose that plaintiffs excepted to the judgment sustaining the demurrer ore tenus of defendant Bank. We do not understand that this ruling is prejudicial to defendant Hoyle. So the correctness of that judgment is not before us. However, a brief comment seems appropriate. The complaint does not allege that the Bank ever received or accepted any money or other property pursuant to the purported trust, nor that the Bank as trustee has in its possession or under its control any of the assets of the J. M. Crutchfield estate. Upon the present state of the record it would appear that the demurrer ore tenus was properly sustained and the rights of plaintiffs preserved by permission given to amend the complaint as against the Bank, trustee, should they be so advised. Defendant Hoyle's assignments of error will be considered on the basis that the Bank, trustee, is not a party to the action.

Defendant Hoyle, executor (hereinafter referred to as defendant), contends that the superior court has no jurisdiction of the cause of action for that 'the jurisdiction of the subject matter is in the Probate Court.' We do not agree.

In final analysis this is an action for an accounting and settlement of J. M. Crutchfield estate and is in the nature of a bill in equity to surcharge and falsify such accounts as were filed. Thigpen v. Farmers' Banking & Trust Co., 203 N.C. 291, 165 S.E. 720. G.S. 28-147 provides: 'In addition to the remedy by special proceeding, actions against executors, administrators, collectors and guardians may be brought originally to the superior court at term time; and in all such cases it is competent for the court in which said actions are pending to order an account to be taken by such person or persons as said court may designate, and to adjudge the application or distribution of the fund ascertained, or to grant other relief, as the nature of the case may require.'

'Construing this statute (G.S. § 28-147), which originated as section 6, Chapter 241, Act of 1876-1877, there are numerous decisions relating to administration of estates in which it is held that the Superior Court is therein given concurrent jurisdiction with the probate courts, that is, clerks of Superior Court in actions of class mentioned in the Statute. See Haywood v. Haywood, 79 N.C. 42; * * * Leach v. Page, 211 N.C. 622, 191 S.E. 349; Gurganus v. McLawhorn, 212 N.C. 397, 193 S.E. 844; (and many other cases cited) * * * . That the statute is not confined to actions pertaining to final settlement in the administration of estates * * * is shown in the cases of Haywood v. Haywood, supra, Leach v. Page, supra, and Gurganus v. McLawhorn, supra.' (Parentheses ours). Maryland Casualty Co. v. Lawing, 223 N.C. 8, 14, 25 S.E.2d 183, 187.

The authority of the Superior Court to entertain administration suits and for the settlement of estates is well recognized. Proceedings to compel a settlement may be begun before the Clerk or an action may be commenced in Superior Court. Davis v. Davis, 246 N.C. 307, 309, 98 S.E. 2d 318; State v. Griggs, 223 N.C. 279, 25 S.E.2d 862; In re Hege, 205 N.C. 625, 172 S.E. 345. The Superior Court has jurisdiction of the instant cause of action.

Defendant further contends that there is a misjoinder of parties and causes of action.

Defendant filed answer in this cause 10 June 1959 and a further answer 21 July 1959. These pleadings have not been withdrawn. The demurrer was filed by defendant 6 June 1960. 'Generally speaking a demurrer may not be entertained after the answer is filed, unless by leave of court the answer is withdrawn, because a defendant is not permitted to answer and demur to one cause of action at the same time. (Citing cases). But this ruling does not apply when objection is entered to the jurisdiction of the court or to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.' Cherry v. Atlantic Coast Line R. R. Co., 185 N.C. 90, 91, 116 S.E. 192. See also G.S. § 1-134; McBryde v. Coggins-McIntosh Lumber Co., 246 N.C. 415, 419, 98 S.E.2d 663; Ezzell v. Merrill, 224 N.C. 602, 606-607, 31 S.E.2d 751.

Strictly speaking the question of misjoinder should be raised by demurrer. G. S. § 1-127 and G.S. § 1-133. Defendant attempts to raise the question in the prayer for relief contained in the answer. This does not require us to consider it, but we think a brief discussion may be in order.

The complaint states only one cause of action. It alleges in substance that J.M. Crutchfield by will devised and bequeathed to his wife, Pearl T. Crutchfield, a life estate in all his property, with remainder in fee to plaintiffs Rudisill and Kernodle, and appointed his wife executrix, that the executrix squandered and misapplied a large part of the estate, failed to properly account therefor, filed no final accounting, and died without closing the estate. A construction of the will is necessary to determine whether plaintiffs are entitled to an accounting and, if so, the course and extent of the accounting. The will is the basis of the rights, if any, of plaintiffs to an accounting and judgment, and not a matter distinct from the settlement of the estate. In determining the effect of a pleading its allegations are to be liberally construed with a view to substantial justice between the parties. G.S. § 1-151.

Plaintiffs allege that Pearl T. Crutchfield, executrix of the estate of J. M. Crutchfield, squandered and misapplied the assets of the estate, that she died without having settled the estate, and that the estate has not been closed. 'Upon the death of an administrator, the administrator d. b. n. should bring an action for an accounting against the administrator of the deceased administrator, and upon his refusal to do so, the next of kin may do so.' Strong: N. C. Index, Vol. 2, Executors and Administrators, § 32, p. 346.

In Snipes v. Estates Administration, Inc., 223 N.C. 777, 28 S.E.2d 495, 497, it was alleged that the administrator of Bruce Snipes, deceased, misapplied funds belonging to the estate and died without making a proper final settlement. The next of kin of Bruce Snipes brought an action against the personal representative of the deceased administrator for an accounting and settlement. With leave of court they made the administrator d. b. n. of the Snipes estate a party defendant. The defendants appealed from the refusal of the lower court to dismiss the action on the ground that it should have been instituted by the administrator d. b. n., and upon the further ground that the court granted the motion of plaintiffs to make the administrator d. b. n. a party defendant. This Court affirmed the rulings of the trial court and quoted from the opinion in Merrill v. Merrill, 92 N.C.657, as follows: 'It is well settled upon principle and authority, that the law does not vest the title to the property of a person who dies intestate in his next-of-kin, but in his administrator. If the administrator should die before he had completed the administration, the title to such property does not vest in his administraor, but in the administrator de bonis non of the first intestate, and so on indefinitely, until the estate in the hands of the first, or some subsequent administrator de bonis non, shall be completely settled and distributed according to law. The next-of-kin of the intestate, cannot proceed against the administrator of his deceased administrator for a settlement and their distributive shares; they must go against the administrator de bonis non of the intestate whose distributees they are, and plainly, because the title to the assets, in whatever shape to be distributed, is in him. * * * This action did not necessarily abate---they might have made the administrator de bonis non a party defendant; indeed, they ought to have done so, as he was the only person whom they could then properly sue---the law vested the title to the assets in him, and to him they must look for their distributive shares.' The Court then said: 'Consequently, under the facts disclosed on this record and in view of the character of the relief sought, it is proper but not mandatory that the administrator d. b. n. shall bring the action, but it is necessary for him to be a party to the action, either as the plaintiff or as a party defendant, in order to prevent a dismissal thereof. Wilson v. Pearson, 102 N.C., 290, 9 S.E. 707; Hardy v. Miles, 91 N.C. 131; Lansdell v. Winstead, 76 N.C. 366. The better, and more orderly, procedure is for the next of kin to bring such action only after the administrator d. b. n. has refused to do so. However, we are not advertent to any case, and the appellants cited none, where this Court had dismissed an action of this character brought by the next of kin, for lack of necessary parties, where the administrator d. b. n. was named a party defendant.' The opinion concluded: '* * * (T)he order of the Court below refusing to dismiss the action and granting plaintiffs' motion to make * * * administrator d. b. n. of the estate of Bruce Snipes, deceased, a party defendant, should be affirmed.'

An action to enforce the settlement and distribution of unadministered assets in the hands of a former administrator or executor must be prosecuted by an administrator de bonis non. Gilliam v. Watkins, ...