S. v. Pickens

• Decision Date: 30 June 1880
• Citation: 83 N.C. 543
• Court: North Carolina Supreme Court
• Parties: S. V. PICKENS, adm'r v. W. D. MILLER and another.

83 N.C. 543

S. V. PICKENS, adm'r

v.W. D. MILLER and another.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION upon an administration bond tried at June Special Term, 1880, of HENDERSON Superior Court, before Schenck, J.

The defendants appealed from the judgment rendered.

Mr. James H. Merrimon, for plaintiff .

Messrs. W. H. Malone, C. M. McLoud and W. W. Fuller, for defendants .

ASHE, J.

This is a civil action brought by the plaintiff (relator) against the defendants as sureties upon the administration bond of John D. Hyman, as administrator of W. F. Taylor, deceased.

The complaint substantially alleges that W. F. Taylor died intestate in the county of Henderson; that on the 10th day of September, 1873, the said Hyman was duly qualified as his administrator, and together with the defendants executed and delivered to the probate judge of said county his bond in the penal sum of five thousand dollars conditioned for the faithful discharge of his duties as administrator; that as said administrator he collected a large sum of money belonging to the estate of the intestate, viz: seventeen hundred and sixty-five dollars, which he has not applied as the law directs, except the sum of six hundred and sixty dollars; that the said Hyman died on the ____ day of _______, 1876, and afterwards, viz: on the 13th day of September, 1876, the plaintiff was duly appointed administrator de bonis non of the estate of the said W. F. Taylor; and that the sum of about eleven hundred dollars is due by the said defendants to the plaintiff as administrator aforesaid by reason of their suretyship on said bond, no part of which has been paid.

The defendants in their answer deny that Hyman is dead, that he was appointed administrator of Taylor, and that they executed the bond. They deny that the plaintiff was appointed administrator de bonis non, or that any such sum of money as that alleged in the complaint, or any other sum, came to the hands of Hyman as administrator, and if it did, that it has been applied as the law directs, and they insist that no demand was made upon them for a settlement before the commencement of the action.

The action was continued until fall term, 1878, when the following order was made by Avery, the judge presiding, with the consent of the counsel of both parties, viz: “In this cause, by consent of parties, it is referred to C. M. Pace, and W. W. Jones, Esqrs., with power to choose an umpire, in case they cannot agree, to determine and settle all the matters of controversy between the parties arising in this cause, and their award, or that of a majority of them, to be a rule of court.”

At spring term, 1880, of said court, the arbitrators returned their award, in substance as follows: That J. D. Hyman qualified as administrator of W. F. Taylor on the 25th day of February, 1869, and executed his bond in the sum of five thousand dollars for the faithful discharge of the duties of his office, with T. W. Taylor and G. W. McMinn as sureties, and on the 10th day of September, 1873, in compliance with an order of the probate court of said county, he renewed said bond in a like sum, with the defendants W. D. Miller and P. F. Patton as sureties; that said Hyman, as such administrator, received in the course of his administration, the sum of three thousand, four hundred and twenty-five dollars and fifty-seven cents, and disbursed the sum of two thousand and forty-four dollars and ninetyone cents, leaving a balance in favor of his intestate's estate of one thousand three hundred and eighty dollars and sixty-six cents on the 5th of April, 1875; that Hyman, as administrator, never rendered any final account of his administration.

They further find that J. D. Hyman died on the -- day of ____, 1876, and that the plaintiff, S. V. Pickens, qualified as administrator de bonis non, on his estate, on the 13th day of September, 1876; that they allowed J. D. Hyman as administrator two and a-half per cent. commissions upon all receipts and disbursements which are shown in an exhibit marked “A” accompanying the report; and as conclusions of law that the first and second bonds herein mentioned are cumulative, and that the defendants are responsible for the balance herein reported as a devastavit of said estate. Exhibit “A” referred to in the report, is an account stated by the arbitrators showing the receipts and disbursements of said Hyman as administrator, running from July the 1st, 1869, to April the 5th, 1875, with interest on both sides of the account, leaving on that day a balance unadministered of thirteen hundred and eighty dollars and sixty-six cents.

The defendants except to the report or award of the arbitrators:

First. Because the arbitrators held as matter of law that the two bonds given by Hyman in 1869 and 1873 were cumulative, contending that they were only liable for the breaches committed after they became sureties in 1873.

Secondly. Because the arbitrators have charged them with interest on each item of money received by their principal, from the time it was received, whereas they could only be held liable for such interest after demand made.

Thirdly. Because the said arbitrators have charged interest on the balance due April the 5th, 1875, without assigning any reason for so...