Thigpen v. Farmers' Banking & Trust Co. of Tarboro

• Decision Date: 12 October 1932
• Docket Number: 53.
• Citation: 165 S.E. 720,203 N.C. 291
• Parties: THIGPEN et al. v. FARMERS' BANKING & TRUST CO. OF TARBORO et al.
• Court: North Carolina Supreme Court

165 S.E. 720

203 N.C. 291

THIGPEN et al. v. FARMERS' BANKING & TRUST CO. OF TARBORO et al.

No. 53.

Supreme Court of North Carolina

October 12, 1932

Appeal from Superior Court, Edgecombe County; Cranmer, Judge.

Action by Virginia Gray Thigpen and others against the Farmers' Banking & Trust Company of Tarboro, as executors of W. J Thigpen, deceased, and others. From the judgment rendered both plaintiffs and defendants appeal.

Affirmed.

Where reference was made by consent, trial judge, on exceptions may affirm, amend, modify, set aside, make additional findings, and confirm, in whole or in part, or disaffirm referee's report.

The judgment of the court below, in part, is as follows:

"As set forth above, it is adjudged by the Court that the defendants are liable to the plaintiffs in the following sums:

$731.94	excess commissions received by defendants.
206.98	excess advancements made to croppers.
282.25	value of crops left by Satterthwaite on Hyman Farm and remaining there March 28, 1930, being amount found by the Referee to be due and not excepted to.
64.27	from M. J. Ivey, or proceeds of sale of personal property remaining on Hyman Farm March 28, 1930, amount found to be due by the Referee and not excepted to.
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$1,285.44	total.

"That these amounts should bear interest from September 24, 1930, date of filing purported final account by executor.

"That it is therefore by the Court ordered, considered and adjudged that the plaintiffs do recover of the defendants, jointly and severally, the sum of One Thousand, Two Hundred and Eighty-five and 44/100 Dollars ($1,285.44), with interest on the same at the rate of 6% per annum, until paid, from September 24, 1930, and that the plaintiffs do further recover of the defendants, jointly and severally, their costs of this action, including the sum of $80.00 heretofore advanced by the plaintiffs at the request of the Referee on account of stenographic work at the hearing before the Referee.

"It is ordered and adjudged that W. J. Bone, Referee, be and he is hereby allowed the sum of $350.00 for his services, of which amount the sum of $100.00 shall be paid by the plaintiffs and the sum of $250.00 by the defendants. E. H. Cranmer, Judge Presiding."

Various exceptions and assignments of error were made by both plaintiffs and defendants, and all of the parties appealed to the Supreme Court.

H. H. Philips, of Tarboro, for plaintiffs.

Geo. M. Fountain and Gilliam & Bond, all of Tarboro, for defendants.

CLARKSON J.

This is an action brought by plaintiffs, who are the sole legatees and devisees, widow and children, under the last will and testament of Dr. W. J. Thigpen, against the Farmers' Banking & Trust Company, executor under said last will and testament of the said Dr. W. J. Thigpen. The said Farmers' Bank & Trust Company is now merged with the defendant North Carolina Bank & Trust Company, defendant. C. S. § 135; Fisher v. Trust Co., 138 N.C. at page 98, 50 S.E. 592; Salisbury Morris Plan Co. v. McCanless, 193 N.C. 200, 136 S.E. 371; In re Estate of Wright, 200 N.C. 620, 158 S.E. 192.

The matter was referred by the court below to W. J. Bone, Esq. In the record we find: "It is admitted by all parties that said order of reference was duly and properly made by consent of all parties." The referee found certain facts, and based his conclusions of law thereon. It is contended by plaintiffs that he failed and omitted to find certain material facts, among them, the following: "That the total advancements in money overpaid said croppers as aforesaid, from the date of executor's qualification to January 4, 1930, amounted to $206.98, for which amount the executor should be liable to account to the plaintiffs." This was sustained by the court below and allowed the plaintiffs. Snipes v. Monds, 190 N.C. 190, 129 S.E. 413. There was sufficient competent evidence to sustain this finding of fact. Both the plaintiffs and defendants made numerous exceptions and assignments of error to the referee's report, and appealed to the superior court. The superior court rendered judgment as set out in the record, and both plaintiffs and defendants made numerous exceptions and assignments of error and appealed to the Supreme Court.

The contentions of plaintiffs were bottomed on the alleged negligent mismanagement of the estate of Dr. W. J. Thigpen by the executor, the defendant Farmers' Banking & Trust Company, now merged with defendant North Carolina Bank & Trust Company. The action is in the nature of a bill in equity to surcharge and falsify the executor's account.

Section 4 of the will is as follows: "It is my will and desire that my executor proceed to pay all debts against my estate as soon as possible, and to that end is authorized to sell such part of my estate, real or personal, without order of court, publicly or privately, as may be necessary to provide such funds, and to close the administration of my said estate as early as possible after my death."

In Gay v. Grant, 101 N.C. at page 209, 8 S.E. 99, 106, 107, citing numerous authorities, the following observations are made: "It has been often held that an administrator is not an insurer of the estate committed to his charge. If he exercises the diligence and care in collecting and securing the assets of the estate which a prudent and faithful man would in the management of his own property, and losses occur which he could not prevent, he will not be charged with such losses. He is only required to be honest, faithful, and diligent."

In Moore v. Eure, 101 N.C. at page 16, 7 S.E. 471, 473, 9 Am. St. Rep. 17, we find the following: "Good faith and the use of ordinary care and reasonable diligence are all that can be required of executors and administrators, whether resident or non-resident. They are not insurers. De Berry v. Ivey, 2 Jones, Eq. [55 N. C.] 370; Nelson v. Hall, 5 Jones, Eq. [58 N. C.] 32." The above principle is well settled in this jurisdiction.

In regard to public officers, the rule is different. They are insurers, including such losses as arise from the act of God or the public enemy. New York Indemnity Co. v. Corp Comm., 197 N.C. at page 564, 150 S.E. 16. The "hard rule upon public officers" has never been held...