Vaughan v. Hines

• Decision Date: 31 October 1882
• Citation: 87 N.C. 445
• Court: North Carolina Supreme Court
• Parties: JULIA A. VAUGHAN, Adm'x, v. A. P. HINES.

87 N.C. 445

JULIA A. VAUGHAN, Adm'x,

v.A. P. HINES.

Supreme Court of North Carolina.

October Term, 1882.

CIVIL ACTION tried at December Special Term, 1881, of HERTFORD Superior Court, before Graves, J.

The action was brought by the plaintiff, as administratrix de bonis non of Henry Vaughan, against the defendant as a surety on the administration bond of Benjamin A. Spiers, the former administrator of said Henry Vaughan, to recover the amount of unadministered assets remaining in his hands after his death.

The bond of Spiers was executed on the 26th day of October, 1866. He died on the -- day of --, 1874.

The plaintiff was appointed administratrix de bonis non of Henry Vaughan on the 21st of February, 1881, and this action was commenced on the 4th day of April, 1881.

It was admitted that Benjamin Spiers, former administrator of Henry Vaughan, had in his hands at the time of his death $227.22, with interest thereon from the first day of July, 1872, assets belonging to the estate of his said intestate, unadministered.

The defendant denied the right of the plaintiff to recover, and relied upon the statute of limitations, as set up in the answer, which was to the effect, that the records of the court show that the said Spiers, as administrator aforesaid, on the 13th day of May, 1873, made a return of his account as such to the office of the probate judge of the county of Hertford, which was duly recorded, and in which he shows a balance of $227.22 due said estate on the first day of July, 1872, and that more than six years had elapsed since the making of said return and the commencement of this action.

Thereupon the judge submitted the following issue to the jury: “Is the plaintiff's claim barred by the statute of limitations as set up in the answer?

The only evidence offered before the jury was two returns made by the administrator, Spiers, to the judge of probate. The first, on the 10th day of July, 1872, in which a balance is acknowledged to be due the heirs of $228.37 with the entry of the judge of probate in the records of his office that “the foregoing return of Benjamin A. Spiers, administrator of Henry Vaughan, is this day made to the undersigned judge of probate on oath, and with vouchers, and upon examination I find balance in hands of administrator, $207.62 principal money and $20.75 interest.” The other was on the 13th day of May 1873, and was the return referred to in the answer and the issue, showing a balance due of $227.22 with the entry of the certificate of the judge of probate that, “the foregoing return of B. A. Spiers, administrator of Henry Vaughan, is this day made to the undersigned judge of probate, on oath, showing a balance of $227.22.

His Honor charged the jury that the latter return was a final account, and that the same had been duly audited, and if six years had elapsed since the filing of said account and the bringing of this action, the plaintiff's claim was barred by the statute of limitations. To the charge the plaintiff excepted, and the jury returned a verdict in favor of the defendant, responding “yes” to the issue. There was a judgment upon the verdict and the plaintiff appealed.

Messrs. Reade, Busbee & Busbee, for plaintiff .

No counsel for defendant.

ASHE, J.

The only question presented by the record for our determination is--was the alleged error in the charge of His Honor, that the account filed by the administrator, Spiers, on the 13th day of May, 1873, was a final account, and if six years had elapsed since the filing of said account and the bringing of this action, the plaintiff's claim was barred by the statute of limitations.

We concur in the ruling of His Honor that the account filed by the administrator, Spiers, on the 13th day of May, 1873, was a final account, though we see no reason why that filed by him on the 10th day of July, 1872, might not be so considered. It showed a clear balance due the heirs on the 1st of July, 1871, after the payment of all debts and expenses of administration. It purported to be a balance due the heirs on the 1 st of July, 1871. The amount then shown to be in the hands of the administrator could not be due the heirs, by which was meant the next of kin, but after the payment of all the debts and expenses of administration. It was such a statement as showed to all persons interested in the distribution of the estate, that the administration of the estate was finished; that there was no longer a necessity for holding the surplus; and that it was subject to the call of the next of kin, the payment of which t...