Snipes v. Estates Administration

• Citation: 28 S.E.2d 495,223 N.C. 777
• Decision Date: 12 January 1944
• Docket Number: 737.
• Parties: SNIPES et al. v. ESTATES ADMINISTRATION, Inc., et al.
• Court: United States State Supreme Court of North Carolina

28 S.E.2d 495

223 N.C. 777

SNIPES et al. v. ESTATES ADMINISTRATION, Inc., et al.

No. 737.

Supreme Court of North Carolina

January 12, 1944

The plaintiffs allege they are the sons of Bruce Snipes, a resident of Forsyth County, who died intestate in 1924.

Moses Shapiro was appointed administrator of the estate of Bruce Snipes on the 7th day of May, 1929.

In 1932, Moses Shapiro, administrator of the estate of Bruce Snipes, deceased, instituted a proceeding in the Superior Court before the Clerk entitled as follows: 'Moses Shapiro, Administrator of Bruce Snipes deceased, v. James W. Snipes, et als.' The defendants in the proceeding included the brothers and sisters of Bruce Snipes, deceased, and others, including these plaintiffs. It is alleged that at the time of the institution of the proceeding, John Spurgeon Snipes was 13 years of age, and was residing in Oxford, N.C., and that William Henry Snipes at the time said proceeding was instituted was 11 years of age and resided at Newton, N. C., and that said administrator knew, or could have ascertained by the slightest inquiry from the other defendants, of their whereabouts. A guardian ad litem was appointed for these minors, but no summons was served upon either of them, personally or by publication, as required by law. Thereafter an issue as to whether or not these plaintiffs were the sons of Bruce Snipes, deceased, was submitted to a jury and answered in the negative. Whereupon the administrator proceeded to pay substantially all of the assets of the estate of Bruce Snipes, deceased, to his brothers and sisters.

On October 27, 1939, J. M. Wells, Jr., was appointed administrator d.b.n. of Bruce Snipes, deceased, Moses Shapiro having died sometime prior thereto.

It is further alleged that this action was instituted promptly by these plaintiffs against the administrator of the estate of Moses Shapiro, deceased, and the bondsmen of Moses Shapiro as administrator of Bruce Snipes, deceased, after they ascertained that Bruce Snipes had left an estate.

The plaintiffs seek to have the judgment adjudging them not the children of Bruce Snipes vacated and set aside and that they be adjudged the legitimate sons of Bruce Snipes and entitled to his estate, and for judgment against Estates Administration, Inc., administrator of Moses Shapiro deceased, and the bondsmen of Moses Shapiro, administrator of Bruce Snipes, deceased, namely, A. Shapiro, M. Sosnik and S Sosnik, for the sum of $4,618.13, together with interest at the rate of 6% from the 1st day of January, 1932.

The defendants appeal from the refusal of his Honor to dismiss the action on the ground that it should have been instituted by J. M. Wells, Jr., administrator d.b.n. of the estate of Bruce Snipes, deceased, and upon the further ground that his Honor granted the motion of the plaintiffs to make J. M Wells, Jr., administrator d.b.n. of the estate of Bruce Snipes, deceased a party defendant.

Dallace McLennan and W. P. Sandridge, both of Winston-Salem, for plaintiffs.

Ratcliff, Vaughn, Hudson & Ferrell, of Winston-Salem, for defendants.

DENNY Justice.

It must be conceded that the plaintiffs cannot maintain this action if the Court erred in making J. M. Wells, Jr., administrator d.b.n. of the estate of Bruce Snipes, deceased, a party defendant. If the allegations of the complaint are true, and the administrator d.b.n. had knowledge of the facts alleged, it was his duty to have brought an action for the relief sought herein. However, it does not appear from the record that the administrator d.b.n. of the estate of Bruce Snipes, deceased, was consulted prior to the institution of this action. He was requested by the plaintiffs to bring an action for the relief sought herein, after this action was instituted, but he declined to do so, whereupon he was made a party defendant in the pending action.

Under our decisions an appeal lies from an order of the Superior Court either making or refusing to make additional parties, when such order affects a substantial right of the appellant. Rollins v. Rollins, 76 N.C. 264; Stephenson v. Peebles, 77 N.C. 364; Lytle v. Burgin, 82 N.C. 301; Keathly v. Branch, 84 N.C. 202; Merrill v. Merrill, 92 N.C. 657; Jones v. Asheville, 116 N.C. 817, 21 S.E. 691.

It has been held, as stated in the case of Street v. McCabe, 203 N.C. 80, 164 S.E. 329, 330, that 'Whenever objection is made, the court has no authority to convert a pending action which cannot be maintained into a new and independent action by admitting a party who is solely interested as plaintiff. It is not permissible, except by consent, to change the character of the action by the substitution of one that is entirely different. Merrill v. Merrill, 92 N.C. 657; Clendenin v. Turner, 96 N.C. 416, 2 S.E. 51; Hall v. Southern R. Co., 146 N.C. 345, 59 S.E. 879; Bennett v. North Carolina R. Co., 159 N.C. 345, 74 S.E. 883; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284; Jones v. Vanstory, 200 N.C. 582, 157 S.E. 867.'

The appellant contends that the making of the administrator d.b.n. of the estate of Bruce Snipes, deceased, a party defendant, converts the pending action into a new one and that under the decision of Merrill v. Merrill, supra, the action must be dismissed. We cannot so hold. In the Merrill case, J. R. Merrill died intestate in 1866, and John Merrill was duly appointed administrator of his estate. In 1873, the next of kin of J. R. Merrill instituted an action against John Merrill, administrator of the estate of J. R. Merrill deceased, for the purpose of obtaining an account and settlement of the estate. Repeated orders of reference were entered, reports made, and each in its order set aside. John Merrill died in 1881. Perry Merrill was duly appointed administrator of the estate of John Merrill, deceased, and named defendant in the action. Afterwards, at the Fall Term, 1883, by consent of all parties, the action was again referred. On the 24th day of August, 1884, Edward Shipman was duly appointed administrator d.b.n. of the estate of J. R. Merrill, deceased, and thereafter applied to the Court to be made a party plaintiff in the pending action. The request was granted and the defendant appealed. The Court said: 'It appears from the record, that the plaintiffs, the next-of-kin of J. R. Merrill, deceased, had a cause of action against the administrator of his estate, John Merrill, but when the latter died, pending the proceeding and before he had completed his administration, their cause of action against him did not survive against the administrator of his estate, the present defendant. The defendant, as administrator, held and was charged with any assets in his hands belonging to the estate of J. R. Merrill, not for his next-of-kin, but solely for the administrator de bonis non of his estate. 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 administrator, 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...