Jones v. . Jones , 118 N.C. 440 ( 1896 )

The material facts as found by his Honor below are stated in the opinion of Associate Justice Furches.

Both parties appealed. DEFENDANT'S APPEAL. J. J. Jones died intestate in the county of Person, leaving him surviving five children, and grandchildren by two deceased daughters, his heirs at law and next of kin. Before his death the intestate had advanced a part of his children in money and personal property-three of them to the amount of $500 and others in smaller amounts and some of them nothing. He had advanced George in land to the value of $800, and the defendant Thomas J. in land to the value of $1,500. The deed to Thomas expressly stated that it was intended as an advancement and was valued in the deed at $1,500, and this deed had been duly probated and registered for more than a year before the death of the intestate. The defendant Thomas had also borrowed $600 of the intestate not long before his death, for which he executed his note. A few days after the death of the intestate the children (all of whom, it seems, were twenty-one years of age) met at the homestead to consult about the estate and to determine who should administer on the same. The infant children of the two deceased daughters were not present, and, though the father of one set and the uncle of the other professed to represent them, they had no authority to do so. At this meeting the different children made statements as to the amount each had been advanced in personalty; and as three of them had been advanced to the amount of $500, and as it was supposed the personal estate would be sufficient to make them all equal to that amount and more, it was agreed that (444) the defendant Thomas should execute a note to the administrator, when appointed, for the difference between $500 and the face value of the $600 note, and that said note should be given up to him or destroyed. This was to make him equal in the personal estate with those who had been advanced to that amount, and to which amount all were to be made equal before any further distribution should be made.

When this was done, it seems that the other children of the intestate, except the defendant, did not have actual notice of the provisions of their father's deed to Thomas, and they were of the opinion that Thomas would have to account for his land, at its value, upon a partition of the lands of the intestate. But when they came to divide the lands, Thomas, by that time, if he had not before, had found out that if he made no claim for any part of his father's estate his advancements could not be brought into hotchpot, and he filed a disclaimer, and the other lands, including that advanced to George, were divided among the other children, except the defendant Thomas, and were valued at $882 per lot.

After Thomas refused to allow his advancements to be brought in, and claimed nothing further from the estate, the administrators, J. W. Jones and Green B. Williams, bring this action to recover from Thomas the balance of the $600 note he owed to their intestate at the time of his death; and, by order of the court, all the distributees were made parties and joined the plaintiffs in prosecuting this action. Defendant answered and said that it was agreed at a meeting of all the parties interested, a few days after the death of the intestate, that inasmuch as he had received no personal advancement from his (445) father he should have $500 out of this $600 note to make him equal with the others; that he should give a note to the administrators, when appointed (it being agreed that day that Jones and Williams should administer), for the difference between $500 and his note; that on the next day they did administer, and he gave them his note for $107 (being the difference between $500 and the $600 note and interest), and by consent of all parties his note of $600 was surrendered and destroyed. He further says that he "stands on his own rights in this case, as he did in the proceeding for partition," and says that it is an attempt" to set up an unjust claim, not creditable to the parties concerned, and in violation of the rights of this defendant." This paragraph of his answer, under the circumstances and facts of the case, we think, might have well been omitted. But a jury trial was waived, and the judge finds the facts as to the $600 note, the agreement of the parties, the appointment of the plaintiffs, Jones and Williams, administrators, and that defendant, after their appointment, gave them his note for $107, and they surrendered or destroyed the $600 note, and soon after the defendant paid the $107 note.

Upon these findings the court held that plaintiffs were entitled to recover $500 and interest thereon from the date of the $600 note, and that defendant must account for the excess in the value of his land.

There may be some natural justice in this ruling, but it is not the law. It was admitted on the argument by counsel for plaintiffs that it was erroneous as to the land, while it was contended that it was correct as to the collection of the $500 and interest.

This agreement and arrangement was made: That defendant (446) should only pay the excess over $500 on the $600 note by all the parties interested in the estate (there being no debts) the day before the administrators were appointed and qualified; and the administrators, after their appointment and qualification, in taking the $107 note and afterwards receiving payment of this note, were acting in accordance with this agreement. But this does not excuse them for any act they did in regard to the estate before they qualified. When an administrator is appointed and qualifies, his rights as such relate back to the death of the intestate. Schouler on Ex., sec. 238. An administrator, by relation, may ratify and make valid any act of his before qualification that he might have done in the course of his administration after he had qualified. Schouler, sec. 195. "One who assumes to act in behalf of the estate of a deceased person in compromising debts due to it before the appointment of the an administrator will, if subsequently appointed administrator, be bound by his acts to the same extent as if he had received his appointment at the time of doing the same." Alvord v. Marsh, 12 Allen (Mass.), 603. To the same effect is Taylor v. Phillips, 30 Vt. (1 Shaw), 238.

In the case of Alvord v. Marsh, supra, it is held that where the plaintiff, before her appointment, settled with the defendant a claim due intestate's estate, in which she allowed claims not due by the intestate, but gave a receipt in full, and afterwards qualified as administratrix, she could not then collect what would have been due but for the settlement; that when she qualified her administration related back to the death of the intestate and validated this settlement.

These authorities go to show that the acts of parties before their appointment, if they are such acts as might have been (447) done in the course of administration, will be ratified if they are afterwards appointed. But from the findings of fact in this case we do not know that they necessarily involve the doctrine of ratification by relation back, as it appears that the $107 note was given and paid to the administrators after their appointment, and we suppose the $600 note was then surrendered or destroyed. But as this does not clearly appear, we discuss the doctrine of relation. And whether it was surrendered the day before they were appointed or not, it was clearly intended as a payment to Thomas as that much on his distributive share of his father's estate. It was in effect the same as if the defendant had paid off the $600 note and the administrators had paid him back $500 out of the same money. But it is claimed that this was done through mistake. And so we think. But a mistake of what? All the facts were known. Defendant's deed had been registered for more than a year in Person County and defendant was living on the land. This was legal notice of that fact, and all the other facts were known to all the parties. This seems to be admitted by the parties in their argument. But plaintiffs contend that it was a mistake of law in not understanding the law of advancements. This seems to be true: that this payment (for we must treat it as such) was made under a mistake of law. And it seems to be settled in this State that a party cannot recover back money paid under a mistake of the law. Newell v. March, 30 N.C. 441; Adams v. Reeves,68 N.C. 134; Lyle v. Siler, 103 N.C. 261; Comrs. v. Comrs., 75 N.C. 240. The administrators, having failed to collect and, in (448) effect, by this transaction, have wrongfully paid the defendant $500 on his distributive share of the intestate's estate through mistake of law, and, not being able to recover it back, have committed a devastavit, for which they are liable.

It is suggested by a member of the Court that it was a compromise of the $600 note, and plaintiff cannot recover on account of section 574 of The Code. This is true, if it was a compromise of the claim; but we see no element of compromise in the transaction. There was no talk of a compromise and there was nothing to compromise. The note was admitted to be due — every dollar of it — and there is no suggestion in the pleadings or otherwise that defendant was not solvent; but, as it was committed by and with the advice of all parties interested, except the two sets of minors, who could not participate or consent to this wrongful act of the administrator, none of them will be allowed to recover against the administrators except the infants. While in law the others might be allowed to recover their aliquot parts against the administrators, it would be unconscionable and inequitable for them to do so; and a court of equity would have enjoined them from so doing before the junction of jurisdictions, but now it will not aid them to recover. Therefore, in settling the estate of the intestate the administrators should be charged with this $500 and interest. But each one of the four adults who participated in this agreement and arrangement to give Thomas $500 out of the $600 note should be charged with his aliquot part — this being one-sixth each — as Thomas claims no part of the estate. This will be making them liable for one-third of the $500 and interest, whereas they have collected only $107. For the reasons assigned, there (449) is error. Plaintiffs cannot sustain this action, and the judgment appealed from is

Reversed.

PLAINTIFF'S APPEAL.