15 N.C. 577 | N.C. | 1834
On the trial before Martin, J., at PASQUOTANK, on the last circuit, the defendant offered to prove in support of his plea, the costs incurred in defending an action of trover, brought against him for a quantity of corn, in which a verdict had passed against him. That this was in the possession of his intestate at his death, was by him, the defendant, under the advice of counsel, sold as a part of the assets; and that the action was defendedbona fide. But the suit being against the defendant in his own right, his Honor rejected the evidence, and a verdict being returned for the plaintiff, the defendant appealed. It is somewhat surprising, that the researches of the bar and of the Court, have been ineffectual for a case in point, upon the question in this cause. It may perhaps be accounted for from the circumstance, that in England almost all administrations are settled either in the spiritual courts, or upon a creditor's bill in chancery. If the creditor uses such accounts at law upon an issue on plene administravit, he must take them as they are, and cannot charge the executor thereby, without also discharging him. In those courts the executor is regarded as a trustee, and if he conducts himself fairly, is entitled to his costs in the suits there, and also all those incurred bona fide in other courts, in the course of administration, as just allowances to him in the execution of the trust, by which as he cannot be gainer, he shall not be made loser. This is the general doctrine. Williams' Exr's. 1252-3. It is clear that all such charges, properly incurred, are (578) good against the estate, as against the legatees and next of kin, who are more strictly cestuis que trust, than creditors of the executor. But if the costs have been *473 unnecessarily incurred, as if the executor suffer himself to be sued for a debt, when he has assets to pay it, or sue for a demand which he knows, or had the means of knowing, never existed, or had been satisfied, he is not only bound, where the law subjects him to the costs, to pay them as between himself and the party to the suit in which they arose, but must pay them out of his own pocket, as against the estate. In general the common law does not give costs against an executor, but upon the idea that he is personally in default, and ought to pay them at all events de bonispropriis, if he has not assets under his own control with which to defray them. If he has assets he is considered, in respect to them, the debtor. Yet that is not the principle which governs the settlement between him and those to whom he is accountable in equity. There the estate is considered, in the first instance, the debtor, and the executor only when he acts wrongfully. Hence although at law, costs are not given to a defendant in a suit in which an executor is plaintiff, and the cause of action arose in the testator's time, although the plaintiff fail, yet the executor is entitled to charge his own costs against the estate, as against the legatee, and for that reason the latter is not a competent witness for the executor, by releasing his interest in that debt, without releasing his interest in the whole residuum. Baker v. Tyrwhitt, 4 Camp. 27.
The idea on which his Honor went, and which has weighed much with this Court, is that the suit in which the costs were incurred, was for a trover of the defendant's own, and that it was a personal wrong, in which the intestate's estate was not concerned. It is in strictness so at law, and conclusively so as between the parties in that action. It is presumptively so in every other court, and as between all parties, until the executor makes it appear that his defense was upon his right in his representative capacity, for the benefit of the estate, and upon a fair case. The question is, whether those facts (579) can be acted on at law, upon the plea of plene administravit, to the suit of a creditor. We see an inconvenience in it, as for the want of a competent Ordinary to adjust the charges, the trials before a jury may be much perplexed by such questions, and our statutes only give authority to the County Courts to fix the commissions and not settle the account so as to show the balance. But we see a greater inconvenience; positive injustice to the executor, in rejecting them altogether. We assume here that the defendant could have proved what he offered to prove, that the corn was in possession of the intestate at his death; that he supposed he owned it, and that he sold and delivered it as administrator; that he had good reason for *474
his belief, and proceeded under advice of counsel. This is a case of perfect bona fides, which Lord Ellenborough said, inBaker v. Tyrwhitt, was the ground of the liability of the residuary legatee to the executor, when plaintiff for his own costs. We think this defendant would have a right to charge his costs in that action to the estate as against the legatees. Why should he not against a creditor? In our law, an executor as well as administrator, is a representative in trust, and not for his own benefit. Although at law he is not regarded so in every case, yet he is in respect of the administration of the assets. The acts of 1789 and 1799 authorize all necessary charges and disbursements, and provide that they, and the commissions allowed shall be deemed proper charges against the assets, and may be retained as well against any creditor of the deceaed [deceased], as against a person claiming as legatee, or as being entitled to a distributive share. To us it seems that whatever claims the executor has against the estate, he may, by these statutes, assert as against any person who is prosecuting him for a demand on, or for the estate, and in the court in which he is thus prosecuted. His right, as in other cases, will depend upon the disbursements being necessary and proper. We know that executors are constantly allowed upon a question of fully administered their own costs in actions brought by them as executors, and in which they failed. The failure establishes that (580) the demand was no part of the testator's estate, and therefore that the executor went beyond his duty in suing for it. In England certainly, he can claim such costs from the legatees. In our law he always claims and retains them as against creditors. The cases seem to us analogous, and indeed to be the same in principle; which is that the executor acted honestly on the occasion, and upon his trust. The only difference is, that if the testator left evidence of a debt, it raises a presumption that the executor believed the debt due, and that it was a part of the estate, and the form of the action shows that he acted only for the benefit of the estate. That presumption the legatees may repel. In the present case the record raises a contrary presumption, that the wrong was the defendant's own, and upon his own title, or claim of title. We think he may repel that presumption, especially as it has been held that the plaintiff in the former action might have declared against him in his representative capacity. Mobley v.Runnels,
PER CURIAM. Judgment reversed.
Cited: Lewis v. Johnston,
(581)