Turner v. Gaither

• Decision Date: 30 June 1880
• Citation: 83 N.C. 357,35 Am.Rep. 574
• Parties: W. TURNER, Admr., v. J. B. GAITHER.
• Court: North Carolina Supreme Court

83 N.C. 357

35 Am.Rep. 574

W. TURNER, Admr.,

v.J. B. GAITHER.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION tried at August Special Term, 1879, of IREDELL Superior Court, before Gudger, J.

The plaintiff declared upon certain notes under seal, and the defendant set up the plea of infancy and statute of limitations, in bar of recovery. The letter (dated in 1876) referred to in the opinion of this court and offered in evidence by the plaintiff to show that the defendant had ratified and confirmed the contracts made during his minority, is as follows:

Messrs. W. Turner & Son:

On a day not long since I received a letter from C. L. Turner saying he had papers in hand, in reply to which I will address father and son, and say I have no settlement to make with the son, but will deal exclusively with the father, or whoever settled the estate of A. B. F. Gaither deceased. According to my memory, Mr. W. Turner has very small claims against me, as the principal of the note given him has been paid. The other papers are certificates merely showing that one J. B. Gaither received so much as a part of his interest in A. B. F. Gaither's estate, to be accounted for on final settlement--witnessed and signed by Dr. Foote. Over three years ago I told Mr. W. Turner I was ready to settle whenever he showed me (the oldest heir) what went with the effects of said estate. I say so still, and claim a right to know. I do not say that Mr. Turner has acted dishonestly, but I want him to prove to me by showing accounts that he has acted honestly. I am not satisfied nor will I be until I see both sides of the books. If the estate was swept up by debts, show the facts and figures to me, then I will have no more to say. Some of Mr. Turner's younger children had a good deal to say about the estate and especially the heirs. It gored me and I began to suspect. The first thing that ever made me surprised was a remark made in my presence, namely, that Colonel Campbell's estate was wealthy, and when settled went as ours did. The James property at Olin was mentioned as belonging to estate, and worthless confederate money poked off on estate, and held and secured to administrator (that is the Olin property was). I have heard of good deal of dissatisfaction also from Ward's and other estates. Mr. McCubbins told me of meeting Mr. Turner and advised settling it up, but was shocked with surprise when told that W. Turner refused to show what went with the effects of the estate, and said as did my legal counsel that the heirs ought to have been represented when the final settlement was made, in fact the heirs should have been sued for settlement, and not cram off the thing in the manner in which it was done.

Please answer the following questions: Is not an administrator bound for the debts (that are due the estate) which he returns as good? If so, why was not William Gaither made to settle his debts as well as what mother bought at the sale, and was forced by threats and intimidations to sign a paper which she did not understand. Shame on you, Mr. Turner. Close up every thing as near as you can, still there will be something unfinished. Ought not an administrator to know in two years how an estate will close? Did you not tell me two years after father's death that the children would get a thousand dollars and more apiece besides the land? Why was the estate not represented on the trial of the Grant suit? What went with all the gold you received? Was it returned as gold, was it sold as it should have been for one forty per cent that you charged me for the same gold I believe as late as the fall of '69? What went with proceeds of first sale, second sale, and sale of real estate? What rent did you collect from William Gaither, and did you make him refund the hundred dollars he took from his brother's desk? Please give a list of the debts you paid. I have heard of only a few small ones being paid. I must sooner or later see the records of A. B. F. Gaither's estate. Name the place and I will make my arrangements and meet you, W. Turner, with any one you may select to have a fair and square investigation, and do not say as before that it is none of my business what went with the estate. You had no right to a cent from any of us until you showed us where our estate had gone. The law says not, and let us abide by the law. Come square to the point, business is business, let us settle in a business-like manner. (Signed by the defendant.)

The other facts material to an understanding of the case are set out in the opinion of this court. Verdict and judgment for the plaintiff, appeal by the defendant.

Mr. J. M. Clement, for plaintiff .

Mr. J. M. McCorkle, for defendant .

SMITH, C. J.

The action is brought on several notes under seal and accountable receipts, all of which, except the note bearing date October 30th, 1869, and a small sum not disputed, were executed during the minority of the defendant to the plaintiff, administrator of A. B. F. Gaither, his father. The defences set up in opposition to the recovery are infancy and the bar of the statute of limitations. Upon an account ordered and reported during the progress of the cause between the plaintiff and his intestate's estate, it appeared that the assets had been administered and a large indebtedness still remained unsatisfied. The moneys for which the notes and receipts were given were used by the defendant in defraying his expenses in procuring a medical education in Philadelphia, and he had no other means than those furnished by the plaintiff for that purpose. The plaintiff insisted that the debt thus incurred was for necessaries, and relied on a letter addressed to him by the defendant in June, 1876, eight years after he arrived at full age, as evidence to repel the bar of the statute and as a ratification of the contract.

Several issues were submitted to the jury, and their responses in substance are that the defendant was under twenty-one years of age when the contracts were entered into; the moneys furnished were necessaries; the statute of limitations is not a bar, and the defendant has since attaining majority ratified and confirmed the contracts.

During the trial the defendant's counsel asked the court to charge the jury that “there is no evidence tending to show that the money furnished the defendant was for necessaries, the intestate's estate being insolvent, and that money advanced or loaned was not in itself within the meaning of the term necessaries, for which an infant can incur a binding obligation.

The further instruction was also asked that the failure of the plaintiff to make his final settlement of the intestate's estate until 1874, eight years after the grant of administration, let in the statutory bar to the accountable receipts and prevented a recovery on them. The court...