49 S.E. 915 | N.C. | 1905
It appears from the pleadings that John H. Freeman, having made his will, died in the county of Greene in December, 1885; that Travis E. Hooker qualified as his executor on 31 December of the same year and proceeded to administer on said estate; that Travis E. Hooker died in March, 1887, about fourteen months after his (422) qualification as executor, and without having fully administered the estate. After the death of Hooker, John Sugg was appointed and qualified as administrator d. b. n. with the will annexed of John H. Freeman. J. Q. Jackson was appointed and qualified as administrator of Travis E. Hooker, and in due time settled his estate, filed his final account, and was discharged, and has since died. Before the present action *314 was begun the defendant John T. Sugg was appointed as second administratord. b. n. of said John H. Freeman, and the defendant Wooten was appointed administrator d. b. n. of said Travis Hooker.
The plaintiffs are special legatees under the will of John H. Freeman, whose legacies are made a primary charge on his personal estate and a secondary charge on his real estate, and bring this suit against J. T. Sugg, administrator d. b. n. of John H. Freeman, and John L. Wooten, administrator d. b. n. of Travis E. Hooker and others, alleging (1) that their legacies have never been paid; (2) that Travis E. Hooker, as executor of John H. Freeman, had received large sums of money for which he had never accounted, and (3) that John Sugg, former administrator d. b. n. of John H. Freeman, had negligently and wrongfully failed to call him to account; that such accounting was necessary to the recovery of their legacies, and that before bringing this suit they had demanded of the defendant John T. Sugg, the present administrator d. b. n. of John H. Freeman, that he bring suit against the defendant Wooten to recover from him the amount due from Travis E. Hooker's estate to the estate of John H. Freeman, and that he had refused to comply with such demand.
The defendant answered, denying the principal allegations of the complaint, and John L. Wooten specially answered that there had been a full, true, and complete accounting between his predecessor in (423) office, J. Q. Jackson (former administrator of Travis E. Hooker), and John Sugg, who was then administrator d. b. n. of John H. Freeman; that a balance had been struck, finding a small amount due from the estate of Freeman, which said amount had been paid and all claims against the estate of Travis E. Hooker settled and adjusted.
The form of this plea is set out in section 36 of the defendant's answer, as shown in the record at pp. 31, 32, 33, 34, 35, 36, and 37. The court, on motion of plaintiff's counsel, and on the pleadings, ordered a reference to take and state an account "as against John L. Wooten, administrator of Travis E. Hooker, former executor of John H. Freeman, as to the personal estate of John H. Freeman and the dealings of said Travis E. Hooker as executor of John H. Freeman." The defendant John L. Wooten, administrator of Travis E. Hooker, excepted and appealed.
The administrator d. b. n. of John H. Freeman's estate is the proper person to call the administrator of Travis E. Hooker to account. Ham v.Kornegay,
In 1 Enc. Pl. and Pr., page 100, it is said: "A plea of account stated is a good bar to a bill for account, for there is no rule more strictly adhered to in courts of equity than that, when a defendant sets forth a stated account, he shall not be obliged to go into a general one." Costinv. Baxter,
Whether the defendant can make his plea good by proof is another question, but on the pleadings it is a good plea in bar. This being true, it was error to order a reference until such plea was disposed of. Roysterv. Wright,
This decision is also an authority for the position that the (425) order in question is one from which an appeal can be immediately taken. The practice in this respect is further declared in Kerr v. Hicks,
Let this be certified, to the end that the order of reference be stricken out and the cause proceeded with in accordance with this opinion.
Error.
Cited: Duckworth v. Duckworth,
(426)