Wilson v. Pearson
| Decision Date | 18 May 1889 |
| Citation | 9 S.E. 707,102 N.C. 290 |
| Parties | WILSON et al. v. PEARSON. |
| Court | North Carolina Supreme Court |
Civil action, tried before BOYKIN, J., at August term, 1887, of the superior court of Burke county, and heard upon the report of the referee (to whom the cause had been referred) and exceptions thereto. There was judgment confirming the report and the defendant Richmond Pearson, executor, etc., appealed.
The action was commenced by summons issued on the 8th day of February, 1883, against John Gray Bynum, administrator d. b n. of Charles McDowell, deceased, C. M. McCloud administrator of N.W. Woodfin, deceased, Richmond Pearson executor of R. M. Pearson, deceased, Samuel McDowell, and others. The complaint alleges in substance: (1) That Charles McDowell died in 1859, leaving a last will, which was duly proved; (2) that N W Woodfin was duly appointed administrator cum tes. an. of said Charles McDowell, and executed his bond as such, with John W. Woodfin, W. F. McKesson, and R. M. Pearson as sureties; (3) that said N.W. Woodfin died insolvent, and C. M. McCloud is his administrator, and that John W Woodfin and W. F. McKesson are dead, and their estates insolvent; (4) that R. M. Pearson died leaving a large estate, and the defendant Richmond Pearson is his executor; (5) that on the 25th of November, 1855, W. F. McKesson, Charles McDowell, and James McKesson (the last two as sureties) executed their bond, signed and sealed, to W. M. Walton, promising to pay to him or to his order the sum of $2,200; (6) that James McKesson is dead, and his estate is insolvent; (7) that no part of said bond has ever been paid; (8) that the plaintiffs are the assignees and owners of said bond and the debt created thereby; (9) that N.W. Woodfin died in 1876, and John G. Bynum has been appointed and duly qualified as administrator de bonis non, etc., of the estate of Charles McDowell; (10) that the outstanding debts against the estate of Charles McDowell, deceased, are between $8,000 and $9,000; (11) that Charles McDowell, deceased, left a large personal estate, consisting mostly of slaves, and the plaintiffs are informed and believe that all the personal estate of the deceased has been exhausted in the payment of debts, and by the emancipation of the slaves and other destructive results of the war; (12) that there are no personal assets known to plaintiffs out of which they can obtain payment of their debt, and none have come to the hands of John G. Bynum, administrator, etc., as they are informed; (13) that Mary T. Pearson (and others named) are the heirs and devisees of Charles McDowell, deceased; (14) that Charles McDowell died seised of the lands mentioned in the complaint; (15) that said lands are in the possession of Samuel McDowell (and others named;) (16) that John G. Bynum, administrator, etc., of Charles McDowell, has not instituted any legal proceeding to recover any assets, if any there be, from N.W. Woodfin, the former administrator, etc., nor has he instituted any legal proceeding to subject the real estate of said Charles McDowell, deceased, to the payment of the debts of the deceased; (17) that plaintiffs demanded of said Bynum, administrator, etc., before bringing this action, that he should file a petition for sale of real estate, etc., and that he declined to do so. Judgment is demanded for sale of real estate, and for such other and further relief, etc.
To this complaint the defendant Richmond Pearson, executor, demurred, assigning as cause therefor: "(1) That no relief is prayed against him in the complaint; (2) that the complaint admits that there had been nodevastavit of the principal of his testator, N.W. Woodfin, administrator, etc., of Charles McDowell, and consequently there is no breach of the administration bond of said Woodfin." It nowhere appears from the record that this demurrer was ever passed upon judicially, but at the same term of the court the following order was made: "In this case, the defendant having filed a demurrer, and the pleadings being under oath, and the defendant Pearson being absent, it is ordered that within 30 days the defendant Pearson be allowed to withdraw his demurrer and file an answer, and he is required to serve the plaintiffs with a copy of answer in case he should file the same." At September term, 1883, by consent of counsel for all parties (including the defendant Pearson) in writing filed, allegation 5 of the complaint was amended by adding: "That W. M. Walton brought suit on said bond 15th of March, 1866, and at fall term, 1869, obtained judgment thereon, as appears of record in the superior court of Burke county." Allegation 8 was amended so as to read: Allegation 11 was amended by adding: "Nevertheless the plaintiffs are informed that the devisees of Charles McDowell, deceased, defendants in this action, deny that the assets of the estate of Charles McDowell have been exhausted or legally applied, and allege that N.W. Woodfin, former administrator, was guilty of a devastavit of said assets, and plaintiffs are not able to swear positively how the matter stands." And the prayer for relief was amended by adding: "That an account be taken of the estate of Charles McDowell, deceased, to ascertain whether the assets have been exhausted or have been legally applied, and how much, if any, assets are still in, or ought to be in, N. W Woodfin's hands; and, if it appears that he was guilty of a devastavit, that plaintiffs have judgment against his administrator and the surety on his bond, to-wit, Richmond Pearson, executor of R. M. Pearson, deceased, and for such further relief in the collection of plaintiffs' debt or claim as may be consistent with the facts found in this case."
To this amended complaint the defendants answer: (1) That the judgment mentioned as having been entered and recorded in 1869 is barred by the statute of limitations; (2) that the judgment aforesaid is dormant, and leave to bring an action thereon was not obtained prior to the bringing of this action. And for further answer they adopt the answer of their co-defendant, J. G. Bynum, administrator. This answer is signed by counsel for defendants, including George N. Folk, counsel for the defendant Pearson. Upon the trial of the cause at September term. 1883, by agreement in writing, allegations 1, 2, 3, 4, 5, 6, 8, 9, 13, 14, 15, 16, and 17 were admitted, and it was also admitted that N.W. Woodfin, as administrator of Charles McDowell, within less than two years after his qualification, divided among the legatees the greater part of the personal property, and took no refunding bonds, and upon being heard "upon the pleadings, the records made part of the facts, and the admissions of the parties," judgment was rendered for the defendants and the plaintiffs appealed. In the supreme court (92 N.C. 717) the judgment of the supferior court was reversed. At spring term, 1886, upon motion of plaintiffs, the case was referred, under the Code, to George F Bason "to take and state an account of the estate of Charles McDowell, deceased; to ascertain and report whether the assets have been exhausted or legally applied, and how much, if any assets, are still in, or ought to be in, the hands of N.W. Woodfin, administrator of said estate, or in the hands of his personal representative, which ought to be applied to the claim of the plaintiffs, and report," etc. This order of reference was resisted by J. G. Bynum, administrator, etc., Cora McDowell, Manly McDowell, and Thomas Walton and wife, and was made without prejudice as to them. At the same term it was ordered that J. G. Bynum, administrator, etc., and the McDowell heirs, have leave to amend their answers, and that the "plaintiffs have leave to amend their complaint heretofore filed herein, as they may be advised, said amendment to be filed either at the time or before the referee appointed herein to state an account, and upon any amendments to plaintiffs' complaint, the defendants shall have leave to amend their answers in reply to such amendments made by plaintiffs." And thereupon the heirs of Charles McDowell, defendants, filed an amended answer, with a copy of the judgment of the supreme court rendered at January term, 1870, upon appeal from the superior court of Burke county in the case of "W. M. Walton, plaintiff, against W. F. McKesson, N.W. Woodfin, administrator of Charles McDowell, and W. F. McKesson, administrator of James McKesson," and insist that it was a "final judgment absolute" against the defendants in the judgment mentioned in allegation 5 of the amended complaint, and fixed N.W. Woodfin, administrator, etc., with assets sufficient to discharge the same, and that said judgment is a bar to the recovery of the plaintiffs against them. They further say that the administration bond of said Woodfin was then, and still is, perfectly solvent, etc.
The plaintiffs filed (August 6, 1886) an amended complaint, admitting the copy of the record of the judgment of the supreme court of North Carolina in the case of Walton v. McKesson et al. to be true, and alleging "now that N.W. Woodfin, administrator, etc., of Charles McDowell had in his hands assets sufficient to pay the plaintiffs' debt, and that he unlawfully distributed them and wasted them, and that the sureties on his bond, and their representatives, are liable for plaintiffs' debt." Plaintiffs thereupon demanded judgment against the defendant Pearson for the said debt, and for such other or different relief as they may be entitled to against all the defendants.
Thereupon the defendant Pearson, executor, etc., filed a separate answer to the ...
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