Syme v. Badger

• Decision Date: 28 February 1885
• Citation: 92 N.C. 706
• Court: North Carolina Supreme Court
• Parties: A. SYME, Administrator, et als v. THOMAS BADGER, Administrator, et als.

92 N.C. 706

A. SYME, Administrator, et als

v.THOMAS BADGER, Administrator, et als.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION, heard on exceptions to the report of a referee, before Avery, Judge, at February Term, 1884, of WAKE Superior Court.

There was judgment for the plaintiff, and the defendant appealed.

Messrs. J. W. Hinsdale, Battle & Mordecai and John Devereux, Jr., for the plaintiffs .

Messrs. Gatling & Whitaker, for the defendants .

SMITH, C. J.

George E. Badger died in the year 1866, having, in October, 1859, made his will duly attested and in form to pass his real and personal estate, to which, in December, 1860, he annexed a codicil similarly executed, which his surviving widow, Delia Badger, nominated sole executrix, caused to be proved in the proper court and letters testamentary to issue to her.

The provisions of the will, so far as they are pertinent to the inquiries which the appeal requires us to make, and contained in the first and second clauses thereof, are as follows:

In the first place--“In the marriage settlement between my wife and myself, made just before our marriage, mention is made of bonds amounting to the sum of $15,119, but on ascertaining the state of accounts between her and the late Alfred Alston, who was executor of General Williams, and had acted as her agent, this sum was found subject to a deduction of $1,419, due him, so that the net amount receivable thereon was but $13,660. To this are to be added a sum received of hers from the Clerk of the Supreme Court in a suit in equity, and other sums amounting to about $1,500, making the sum for which I am accountable to her, $15,160.

Out of this I have purchased for her, and at her request, negro woman Catharine, at the price of $650; also, I have purchased the part of lot No. two hundred and ten (210), on which my office stands, of Thomas D. Hogg and George W. Mordecai for the price of $800, the residue of the said lot having belonged to her before our marriage and being embraced in our marriage settlement, leaving the sum of $13,710 to be otherwise accounted for. I have made investments in the stock of the Bank of the State and the Bank of Cape Fear, sometimes at some advance on the nominal value of the shares, and also in bonds. Of the stock, forty shares in the Bank of Cape Fear were subscribed and now stand in the name of my wife, and will, of course, be hers without any bequest from me.

Now, therefore, in payment and discharge of what I do owe to my wife, I devise and bequeath to her, her heirs, executors and administrators, sixty shares of stock standing in my name in the Bank of Cape Fear, besides and in addition to the said forty shares, the portion of the said lot No. 210, in the city of Raleigh, purchased by me of the said Hogg and Mordecai, and three thousand seven hundred dollars in cash or bonds.”

Secondly:--“Under a deed made by my late wife Mary and myself to Thomas P. Devereux, and a deed from him to me, made in the latter part of the year 1834, or beginning of 1835, her share in certain lands descended from or devised by her father, Col. William Polk, were conveyed to me in trust for myself for life, remainder to my children of whom she was the mother, with a full power to me to sell any or all of the said lands, making such other investments as I might deem best, to be to the same uses, as will appear by reference to the said deeds now recorded or registered in Tennessee where the lands were situated. These lands being at a distance from me, constantly liable to depredations as well as to loss of title by adverse possession, I deemed it best to sell, and by the return of John H. Rill, the agent who made the sales, it appears that they brought in the whole a little less than $15,000. I have from time to time invested these proceeds in bank stock purchased at a large premium, and in bonds. The Bank of the State being about to wind up, in which these investments were chiefly made, in settlement of this fund I do give and bequeath to my dear daughters, Catharine, wife of Wm. H. Haigh, Esq., and Sallie, wife of Montford McGehee, Esq., only children of my said late wife Mary, each fifty shares in the capital stock of the Bank of North Carolina, subscribed by me and in my name, the said stock to be paid for out of my estate, and to each of my said daughters I also bequeath three thousand dollars in cash or bonds.”

Upon the coming in of the answer, an order of reference with consent of parties was entered at January Term, 1880, and the appointed referee directed to “take and state an account of the assets and effects of the said George E. Badger, deceased, that came or ought to have come into the hands of the executrix,” &c., and what disposition has been made of them by her or her administrator, and to inquire and report to whom shall be paid such as have come or may come into the hands of the plaintiff, the administrator de bonis non, &c.

The referee proceeded to take evidence on the subject-matters of the reference, and has reported the same with his findings of fact and law, embodied in a series of accounts submitted with the report. The plaintiff filed several exceptions, most of which were sustained, and, upon a recommittal of the report, the account was reformed in accordance with the rulings of the court. The defendant's exceptions were overruled, and judgment being rendered, the defendant Thomas Badger, as administrator, appealed to this court.

The first two conclusions of law submitted by the referee and so numbered are in these words:

1. That Delia Badger, the executrix of George E. Badger, deceased, and intestate of Thomas Badger, administrator, having qualified under the will of her testator, containing a legacy stated to be in satisfaction and discharge of the debt due to her by him, thereby in law accepted and became bound by its provisions, and that she thereby waived the right to retain the amount of her debt out of the assets except as directed by the will.

2. That the plaintiffs McGehee and Haigh having never mentioned to the executrix, the matter of the legacies left to them, or made any demand on her for them, and knowing that she was applying the estate to her support, and being willing that she should do so, ought to be taken as assenting to the delay in collecting the McIlhenny and Taylor debt (originally due from one Miller), and to the consequent risk, and that the executrix ought not to be charged with the excess of the debt above the amount actually received thereon.

The defendants' exception to the referee's first conclusion was overruled. The plaintiffs excepted to the second and were sustained, whereby the estate of the intestate of the appellant is made responsible for the full nominal value of the Miller debt.

These rulings constitute the case on appeal, and in order to their being properly understood and determined, require an examination of the facts applicable to each, and as found by the referee they are contained in the sixth clause of his series of findings of fact. Upon an examination of the evidence reported, we think it fully sustains the findings of the referee, which are as follows:

“6. That the assets which came to the possession of the executrix were as follows: (1) A note of John and Thomas P. Devereux, who were subsequently declared bankrupts. The debt was duly proven against the estate of the debtors and small dividends were at various times received therefrom as charged in the account, No. 1, hereto annexed. (2) A note for $............ against Thomas Miller and sureties. This debt being considered unsafe, Miller was required to execute a new note, with other sureties (Thomas McIlhenny and John D. Taylor). On said new note suit was brought by Mrs. Delia Badger, and judgment obtained thereon, with the understanding that a note secured by mortgage on the lands of McIlhenny and Taylor, in Brunswick county, N. C., should be substituted for the judgment, the lands being ample security at that time, for the debt. This was done, and in 1871 the lien of the mortgage upon the land conveyed therein by McIlhenny was released, with assent of Taylor and wife, and a new mortgage taken upon other lands of McIlhenny of greater value than those released, the transfer being made only after careful investigation as to its propriety and as to the value of the lands, by a skilled and careful attorney. The mortgages were made to Mrs. Delia Badger. The note secured by them was for $6,650, bearing 8 per cent. interest, payable semi-annually and dated January 1, 1870. Suit for the foreclosure of the mortgage was instituted by the defendant Thomas Badger, administrator, after the death of Mrs. Badger, in 1876, and judgment obtained thereon at Fall Term, 1878. The lands were sold on December 6th, 1880, for two thousand dollars ($2,000). On said note, previous to the sale of the lands, there had been paid the said Delia the amounts set forth in the debit side of account No. 1. The judgment taken in 1867 was substituted by the mortgage, for the reason that the...