Rogers v. . Gooch , 87 N.C. 442 ( 1882 )

The effect of the judgment, which Grant as administrator de bonis non recovered against the plaintiff as the representative of the deceased executor, Rogers, could not be to convert the whole of the Phillips estate, including the bond sued on, then in the hands of the plaintiff, into assets belonging to the estate of his intestate, even though it may have been for an amount equal to the full value of all the property sold and all assets that ever came to hand. Nothing short of a satisfaction of that judgment, full and complete, can have that effect, for until then, the estate of Rogers has been out nothing on account of these assets.

We think it clear, therefore, that the bond sued on together with the other property, in the plaintiff's hands, once belonging to the estate of Mrs. Phillips, continues to be a part of her estate (444) and can only be administered by her personal representative; and that under such circumstances, her administrator de bonis non must sue. And indeed that he is the only person who can sue on the bond, is now the settled law of the state, sanctioned by a series of decisions which it must be needless to add to. See Eure v. Eure, 14 N.C. 206; Setzer v. Lewis,69 N.C. 133; Davis. v. Fox, Ib., 435, and Alexander v. Wriston; 81 N.C. 191.

If not altogether certain before, it is made absolutely so by the act of 1868 (Bat. Rev., ch 45, sec. 130) taken in connection with section 55 of the Code of Civil Procedure.

The provision of the statute is that every action brought by an executor or administrator, upon a cause of action, or right, to which the estate is the real party in interest, shall be brought in his representative capacity, and under the Code there is no middle ground; for whenever the action can be brought in the name of the real party in interest, it must beso done.

We take the liberty of suggesting that the plaintiff might have avoided useless litigation, and have accomplished his purpose, and in fact may yet do so, by making the defendant a party to the action now pending between the administrator de bonis non and himself, so that all the parties being before the court, the interest of Mrs. Johnson, as a legatee, and her liability upon the bond may be properly adjusted and pro tanto discharged, the one by the other.

That her estate ought not to be called upon to pay the bond, while her legacy remains unpaid, provided there be assets sufficient to entitle her to receive so much, is settled by the decision in Whedbee v. Reddick,77 N.C. 521.

The present action, however, must fail, because the title to the bond sued on is not in the plaintiff, nor is the estate of his intestate the real party in interest.

No error. Affirmed.

Cited: Jennings v. Copeland, 90 N.C. 578; Ballinger v. Cureton104 N.C. 477; Grant v. Gooch, 105 N.C. 282; Mayo v. Dawson, 16 N.C. 79;Winchester-Simmons Co. v. Cutler, 198 N.C. 337; Rental Co. v. Justice,211 N.C. 55; Ins. Co. v. Locker, 214 N.C. 2; McGuinn v. High Point,219 N.C. 79.

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