72 N.C. 408 | N.C. | 1875
The defendants do not deny that the plaintiffs are creditors of the estate, but the answers raise issues between the two sets of defendants, which should be settled before the rights of the plaintiffs are determined. The administrators in their answer, allege that the next of kin sued them upon their administration bond, for the settlement of the estate and the payment of their distributive shares of the estate; that in said action, an account was taken of the whole estate and of their administration; a final judgment rendered against them in favor of the next of kin, which they have paid in full; they therefore claim that the plaintiffs should resort to the land descended to these next of kin, who are the heirs at law of the intestate.
The next of kin in their answer, claim in a vague and general way, that errors were committed in said settlement, and that provision was therein made for the payment, by the administrators of these outstanding debts. The answer, by way of counter claim, or in any other respect, is wholly insufficient as an action to surcharge and falsify the account and judgment referred to, because the grounds of error are not set forth with the specific, definite and positive certainty required by the rules of equity, so that issues can be made upon them. 1 Ired. Eq. 403, 2 Dev. Eq. 93. But the answer does allege positively, that since the said judgment was rendered, the administrators have received other assets of the estate, more than sufficient to pay these debts, and this allegation does not appear to be denied by the administrators, but they rely on the bar to further enquiry, which they claim as the effect of the judgment. Unquestionably this judgment is no bar to an account of assets subsequently received and not accounted for. The next of kin are therefore entitled to this account, but in taking it, the referee will be confined to an account of assets received since the former account was taken. All the defendants in their *410 answer, claim that these plaintiffs, before this action was begun, had released their said debts to the administrators. If this is so, that release enured to the benefit of the next of kin and heirs at law; but as it is not set forth and pleaded sufficiently, this Court cannot pass upon its legal effect. In taking the account, the referee should give the defendants such benefit of the release, if there is one, as they may in law be entitled to. With these limitations, the judgment of the Superior Court must be affirmed.
PER CURIAM. Judgment affirmed.