41 N.C. 562 | N.C. | 1850
Lead Opinion
Thomas Joyce died intestate, in Rockingham County, in 1822, leaving a widow and eight children surviving him, who were all of full age, and also the infant child of a son, Joseph, who had removed and died in one of the Western States. The estate was small, and consisted of a negro man, named Dick, and other chattels to the value of about $100. Administration was granted to the defendant Dalton, who married a daughter of the intestate; and he made a sale, at which he purchased the slave Dick at the price of $206. Alexander Joyce and several others of the children were present at the sale, and were competitors of the defendant in bidding for the negro; but the defendant, owning the negro's wife, was willing to give more than either of the others would, and became the purchaser. The intestate had also a claim to another negro, which was held adversely by another person; and the administrator was under the necessity of bringing suit (563) for him. It was contested and pending until 1830, when a recovery was effected of the negro and also of the sum of $800 for his hires; and the defendant then sold the negro for $334.25. In May, 1831, the defendant made up his account current, in which he charged himself with the price of Dick and also with the other parts of the estate above mentioned, amounting to $1,454.62, and took credit, for disbursements in prosecuting the suits and other charges and debts paid, for $574.32 1/2 — leaving a balance of $880.29 1/2 in his hands subject to distribution; and he then returned the account to the county court and it was audited by a committee and approved. In 1831 and 1832 the defendant settled at different times with the children, except Alexander and the issue of Joseph. Those settlements were made upon the basis of the said account current, excluding Alexander, and estimating each share at $97.71; and the defendant paid to each of the said children that sum and took receipts therefor as their respective shares of the estate. On 1 November, 1832, Alexander Joyce (whose name had been changed to Tate) instituted an action on the defendant's administration bond to recover a distributive share, and it was defended upon the ground that *390 his father had been compelled to pay large sums as his surety, whereby he had been much more than fully advanced, and so was not entitled to any more of the estate, but the whole belonged to the other members of the family; and in November, 1834, the plaintiff suffered a nonsuit therein.
The present bill was filed on 1 November, 1847, by Alexander Tate and four others of the intestate's children against the administrator and the other children, and also the children of the deceased son, Joseph; and without taking any notice of the account current or of the (564) payments to the several children, it prays an account of the defendant's administration in the usual form, and that the balance of the estate may be ascertained and the shares of each of the plaintiffs paid. It insists particularly that the defendant's purchase of the slave Dick, at his own sale, was invalid, and that he should account for his hires and value; and it states as a reason for the delay in bringing this suit, that some of the plaintiffs lived at a great distance in other States, and that the others, who resided here, were too poor to incur the expense.
The answer of the administrator states that the price he gave for Dick was his value at the time, and that his purchase was made in the presence and with the concurrence of most of the plaintiffs, and with the belief among them all that he had a right, like other persons, to bid and purchase; and also that all the children knew at the time they settled that the defendant was charged in the account with the price of Dick, and neither of them objected or intended to question his title. The answer states that the defendant has paid to the several parties (except Alexander) all the estate, saving only the share of his own wife and that belonging to his codefendants, the children of Joseph Joyce, who reside in distant parts; and that for them he holds it ready whenever they may apply. The defendant further insists upon the settlements made with the respective parties and their receipts as above mentioned, for their several shares, and the lapse of time as a bar to an account in this suit.
Addendum
The settlements made by all the plaintiffs except Alexander, and their acquittances to the administrator, undoubtedly bar them, especially after such a lapse of time and under the other circumstances of the case. The bill takes no notice of those settlements (565) or of the account returned by the administrator, and, prima facie, those plaintiffs could not call for another account, since they in no way impeach that formerly made between them and the administrator. But if the charges in respect of the negro purchased *391
by the administrator could be regarded as impeaching those settlements in that respect, and as laying a foundation for a decree to open the account, they would not furnish a sufficient ground for that purpose. It is true that an administrator's purchase at his own sale is liable to the objection of the next of kin, at their mere election. But they must come in reasonable time for that purpose, and must have done nothing to confirm the purchase, as by settling with the administrator, with the purchase money forming an item of the account or otherwise inducing the administrator to consider the thing purchased as his own. In this case, indeed, he had much right to think that from the beginning, as his purchase was made openly and in the presence of most of the next of kin, who sanctioned his bidding by bidding against him or by their silence; and, unquestionably, his subsequent accounting with them for the price, without any unfairness in the settlement, and with a knowledge on the part of the next of kin of all the facts, must be a ratification by them of what may have been before imperfect. Petty v. Harman,
PER CURIAM. Bill dismissed with costs.
Cited: Tayloe v. Tayloe,
(567)
