Walton v. Pearson

• Decision Date: 31 October 1881
• Court: North Carolina Supreme Court
• Parties: W. M. WALTON and others v. RICHMOND PEARSON, Ex'r, and others.

85 N.C. 34

W. M. WALTON and others

v.RICHMOND PEARSON, Ex'r, and others.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION, upon the bond of administrator, tried at Fall Term, 1879, of CATAWBA Superior Court, before Schenck, J.

On the 25th of November, 1855, W. F. McKesson, as principal, and Charles McDowell and James McKesson, as sureties, executed their bond to the plaintiff, Walton, for the sum of $2,250, payable one day after date. Charles McDowell died in 1859, leaving a will which was admitted to probate in November of that year, and upon the renunciation of the executor therein named, N. W. Woodfin was appointed his administrator with the will annexed and entered into bond as such in the sum of $50,000, with R. M. Pearson and W. F. McKesson as his sureties. James McKesson also died, and William F. McKesson became his administrator. In 1866, the plaintiff instituted suit upon his said bond for $2,250 against W. F. McKesson in his own right and against him, as the administrator of James McKesson, and N. W. Woodfin as administrator of Charles McDowell, in Burke superior court, and at fall term, 1869, thereof recovered a judgment against the three for the amount of the bond and interest, of which judgment a memorandum appears upon the civil issue docket as follows:

+--------------------------------------------------------+
                ¦“W. M. WALTON             ¦)¦                           ¦
                +--------------------------+-+---------------------------¦
                ¦vs.                       ¦)¦Jury--verdict--See minutes.¦
                +--------------------------+-+---------------------------¦
                ¦N. W. WOODFIN & als.  ¦)¦                           ¦
                +--------------------------------------------------------+
                

Judgment against defendant and N. W. W., adm'r, W. F. McK., adm'r. $4,039.92. Int. on $2,200 from 2nd Nov., 1869, (this in pencil mark). From this judgment the deft. McKesson appeals to supreme court (this is in ink.) Quando as to adm'rs; absolute as to W. F. McK. (this in pencil.)”

Whereas the minute docket, after stating the impanneling of the jury and their verdict and amongst other things their finding specially that “the defendants N. W. Woodfin and W. F. McKesson have not fully administered upon the estates of their intestates but have assets belonging to the same sufficient to satisfy the plaintiff's demand,” contains a record of a judgment absolute against W. F. McKesson individually, and the two administrators for the amount then due upon the plaintiff's bond.

From this judgment of the superior court of Burke, an appeal was taken to the supreme court, where the same was affirmed at January term, 1870. In November, 1869, R. V. Micheaux and the plaintiff Walton instituted an action in Burke superior court against N. W. Woodfin as administrator of Charles McDowell, and Samuel McDowell, Anna McDowell, Cora McDowell, and Charles M. McDowell, all infants, and the parties to whom the said Charles McDowell devised the lands whereof he died siezed. In their complaint, which was filed at spring term, 1870, of said court, in behalf of themselves and all other creditors of Charles McDowell, deceased, who will come in, prove their claims and contribute to the expenses of this suit, they allege the death of the said Charles and the qualification of N. W. Woodfin as his administrator as hereinbefore stated. That at the time of his death he was indebted to the parties bringing the action and to other persons in large amounts and divers ways. That besides the lands devised to the infants above named, he owned a large personal estate, embracing some forty or fifty slaves, and amounting to some $50,000 in value, all of which went into the hands of his said administrator, who, in December, 1859, sold eleven of the slaves and all the other personal property, for about $13,000, taking bonds with surety from the purchasers, who by reason of the accidents and results of the war, became insolvent and their obligations of no value; and the slaves unsold being emancipated, the personal estate of the said decedent was insufficient to pay his debts; and therefore they pray that proper accounts may be taken to ascertain the amount of the debts owing, the assets which came into the hands of the defendant. Woodfin, as administrator, and what part thereof he then had in hand, and the value of the real estate devised to the infant defendants, and that said real estate might be sold and the proceeds applied to the payment of the claims of plaintiff and the other creditors. At the same spring term, 1870, the said Woodfin, as administrator, filed his answer, in which he admits that the said McDowell, at the time of his death, owed debts of his own to about $5,000, and a much larger amount as surety for others, but avers that all of his said testator's principals were men of means and abundantly able to pay the debts for which he was bound for them. He further avers that immediately after his qualification as administrator, he advertised, according to law, for all creditors to present their claims, but none of those to whom his testator was bound as surety presented their claims to him, or gave him any notice thereof, and it was not until after the war that he had such notice of their existence. That as administrator he took possession of all the personalty, and in December, 1859, sold a portion of it amounting to some $13,000, upon a credit of six months taking the notes of the purchasers with security amply sufficient at the time. That the amount of said sale was more than sufficient to pay all the debts, as well those of which he had no notice as those of which he had notice, and would have been so applied, but that before he could collect the said notes, stay laws were passed which prevented his doing so until late in the war when he could only have collected confederate money, and such continued to be the case until all the parties to the said sale notes had become insolvent by reason of the accidents of the war and the emancipation of their slaves. That having sold enough to satisfy all claims against the estate of which he had notice, he desisted from selling any more of the personal property and divided the same amongst the legatees according to the terms of the will--there being some thirty or more slaves so divided; and he submitted to the taking of the various accounts prayed for and joins in the prayer for a sale of the lands devised to the infant defendants for the purpose of paying the debts of the estate. At the same term an answer was filed by the infant devisees, by their guardian, in which it is insisted that according to the provision of the will of Charles McDowell his personal estate was expressly charged with the payment of his debts. That of the personalty, some was sold in 1859, and the administrator had ample time to collect the proceeds before the beginning of the war or the adoption of any stay laws, and that he divided the slaves and the unsold personalty amongst the legatees long before the war began and without taking any refunding bonds from them, in doing which he was guilty of a devastavit; and that before selling the land devised to said infants, it was the duty of the creditors to exhaust the personalty and all their remedies on the administration bond. Upon the coming in of the answers, the court, at the same term, made an order of reference and appointed T. G. Walton commissioner to take the account between the said administrator and the creditors of the testator, and directed him to give notice by advertisement at three public places in Burke county, or in a newspaper if he might deem necessary, to all persons interested in taking the account; and further directed the clerk of the court to notify the creditors of said testator that they were restrained from collecting their debts otherwise than as should be ordered in the said cause. At fall term, 1872, the commissioner Walton made his report, in which he finds that there came to the hands of Woodfin, as administrator, personal property to the amount of $30,000, of which he sold $12,500 worth, and received from other sources $1,727. That the claims against the estate amounted to $25,000, of which $9,000 were due from the testator individually, and the balance from him as surety for others; and that the amount disbursed by the administrator was $1,488.31. At fall term, 1873, an order was made in the cause making R. M. Pearson, a surety on the administrator's bond, a party defendant to the action, and at fall term, 1874, the cause was dismissed by order of the court.

On the 19th day of June, 1874, the plaintiff began the present action against N. W. Woodfin as administrator of Charles McDowell, R. M. Pearson, and W. F. McKesson his sureties on his bond as administrator. In his complaint as originally drawn and subsequently amended, by leave of the court, after alleging the execution to him on the 25th of November, 1855, of the bond for $2,250, by W. F. McKesson as principal and Charles McDowell and James McKesson as sureties, and his having recovered judgment thereon at fall term, 1869, against said principal and N. W. Woodfin as administrator with the will annexed of Charles McDowell and W. F. McKesson as administrator of James McKesson, and the non-payment of his claim, the plaintiff assigns as a breach of the condition of the bond given by Woodfin as administrator, the fact that there came to the hands of such administrator a large personal property greatly exceeding in value the amount of claims against the estate, which the administrator neglected and refused to apply to the payment of the debts, but distributed the same very soon after his qualification--to wit: in December, 1859, among the legatees mentioned in the will of his testator and without taking from them refunding bonds, thereby being of a devastavit, by reason whereof the plaintiff was damaged to the amount of his debt and costs of suit. The defendant, Pearson, alone filed an...