34 N.C. 64 | N.C. | 1851
Upon the death of the administrator the duty of settling up the estate devolves on an administrator de bonis non. The administrator of the administrator has nothing to do with it except to account for and deliver over to the administrator de bonis non such of the assets as have not been disposed of by the first administrator in the due course of administration.
Creditors and distributees must look to the administrator de bonis non, for he represents his intestate. There is no privity between them and the administrator of the administrator. They cannot sue him directly, nor have they a right of action on the administration bond executed by his intestate. This bond does not vary or add to the duties of or liabilities of an administrator, but merely increases the security for the performance of his duty. S. v. Johnson,
We prefer to put our decision on the broad principle, and lay no stress on the fact that the debt in this case did not become due until after the death of the first administrator.
The circumstance that the debt has been ascertained by a judgment seems to be relied on by the plaintiff for the purpose of taking his case out of the operation of the general principle. We are at a loss to (66) perceive how it can have that effect. In the first place, such a judgment is unknown at common law, and there is no statute to warrant it. At common law, no plaintiff could take judgment without showing a liability on the part of the defendant. The judgment quando was not an exception, for it did not in fact become a judgment until assets come to hand. Our statutes authorize a judgment when the defendant is not shown to be liable in but three cases: where "no assets" is pleaded, or before a single justice; when a creditor admits the personal estate to have been fully administered and seeks to charge the real estate; and where a creditor seeks to proceed on the refunding bond. *57 So the judgment in this case not being authorized either at common law or by statute can have no force or effect.
In the second place, as there was no privity or cause of action before the judgment it is impossible that such a judgment can have the effect of creating a privity and giving the plaintiff a cause of action against a stranger. We imagine this experiment was suggested by some supposed analogy to the proceeding in equity, where relief is given after a creditor has ascertained his debt at law and is unable to obtain satisfaction. There is in fact no analogy. The action in this case is of the first impression, and has neither principle, authority, or analogy to support it.
PER CURIAM. Affirmed.
Cited: Strickland v. Murphy,
(67)
