14 S.E. 778 | N.C. | 1892
His Honor affirmed and approved the judgment and decision of the clerk, from which the defendant appealed.
The facts appear in the complaint and answer, and are admitted to be true.
The plaintiff alleged, in substance: That Daniel Hoffman died intestate in 1874, and the defendants John Eagle and R. A. Shoaf were duly appointed his administrators; that in 1891 Roseman, administrator of Elizabeth Propst, obtained judgment against the plaintiff and R. A. Shoaf and John Eagle, administrators of Daniel Hoffman, for $800, to be discharged upon the payment of $300; that the said John C. Miller and the defendants' intestate, Daniel Hoffman, were cosureties on the administration bond of one Eli Propst, and said judgment was obtained against the plaintiff and the administrators of the said Daniel Hoffman on account of said suretyship; that the plaintiff in said judgment issued execution on the said judgment and compelled the plaintiff herein to pay the whole of said judgment; that the plaintiff demanded of the defendants contribution for which they were liable, but they have refused to pay the same, or any part thereof; that at the time of his death the said Daniel Hoffman was seized of a tract of land containing about 300 acres, which descended to his said heirs, and that the personal estate of the said Hoffman has been exhausted in the payment of debts, and the plaintiff has applied to the said administrators to have the land, or a part thereof, sold to pay his debt, but they have refused to comply with his reasonable request.
Wherefore, he demanded judgment against the said administrators (321) for $150 and interest, and the further sum of one-half the costs of the suit of Propst's administrator against John C. Miller and the said administrators, and that the said land be sold to pay said debt.
The defendants answered, admitting the material allegations of the complaint, but for a further defense averred "that the defendants John Eagle and R. A. Shoaf, as administrators of Daniel Hoffman, have fully administered and settled the estate of their intestate and have no assets, and, according to law, duly advertised for all persons having claims against said estate to present them for payment; that on 3 March, *225 1874, letters of administration were granted to the defendants John Eagle and R. A. Shoaf, and they have filed in the office of the probate judge of said county a final settlement of said estate on 8 September, 1877; that the plaintiff's cause of action therein stated did not accrue within six years next before the commencement of this action; that the plaintiff's cause of action stated therein did not accrue within three years next before the commencement of this action; that the plaintiff's cause of action did not accrue within ten years next before the commencement of this action; that the plaintiff's cause of action did not accrue within seven years next before the commencement of this action; that the plaintiff's cause of action did not accrue within one year next before the bringing of this action; that the real estate has been divided and partitioned among the heirs at law of the said Daniel Hoffman, and nearly all of the land so partitioned has been sold to third parties, and only a few of the heirs now own the land so allotted to them, and there are no assets, and only a small portion of said heirs have retained their land, and others of said heirs are insolvent." The plaintiff, John C. Miller, and Daniel Hoffman, deceased, were sureties on the administration bond of one Eli Propst, and in May, 1891, a judgment was obtained against the plaintiff and the personal representatives of said Hoffman. Execution having issued, the plaintiff was compelled to pay the whole of said judgment, and this action is brought against the administrators and heirs at law of Hoffman, the said cosurety, for contribution.
It thus appears that the plaintiff's case of action accrued in 1891 (The Code, sec. 2094; Leak v. Covington,
In Andres v. Powell, supra, it is stated in the opinion that the statutory period had elapsed after the cause of action had accrued, and this seems to be the ratio decidendi of that case.
We do not understand that either of the above decisions rested upon the principle asserted by the defendants in the present case, and if there be anything in the opinions which countenances such a doctrine in the slightest degree, it was unnecessary, and certainly does not meet with our approval.
Our attention has been called to The Code, sec. 1489, which provides that "If upon a final accounting by a personal representative it appears that any claim exists against the estate which is not due, or on which suit is pending, the judge or clerk shall allow a sum sufficient to satisfy such claim," etc. What effect this might have in exonerating the real representatives and imposing a liability upon the administratrix for their neglect to comply with this provision, if it applied to this case, it is unnecessary to determine, as very clearly the claim of the plaintiff is not such a debt as is contemplated by the statute. It means some existing claim capable of being ascertained, and not the (325) mere liability of a surety or a cosurety on an administration bond which may never ripen into a cause of action. To hold otherwise would indefinitely postpone the settlement of estates if the intestate happened to be a surety upon bonds of such a character; although there might be but little or no probability of any default on the part of the principal obligor.
Neither is there anything in the fact that some of the heirs have sold their lands. "Payment may be enforced against any tract for the satisfaction of the indebtedness, leaving those whose property may be taken to obtain contribution according to the respective values of the other lands held by devisees or heirs." Lilly v. Wooley,
We are of the opinion that there is no error in the rulings of his Honor, and that the judgment should be
Affirmed.
Cited: Lee v. McKay,