Stonestreet v. . Frost , 123 N.C. 640 ( 1898 )

CLARK, J., delivers the opinion of the court.

MONTGOMERY, J., dissents. The referee found as a fact that in July, 1897, Frost, the administrator, paid an attorney's fee of $100, and that he paid before that time to other attorneys for services in the settlement of the estate $40. Upon that finding of fact the referee held as a matter of law that as the administrator had paid $40 for counsel fees in the settlement of the estate, and as there was no evidence to show that he had any unusual trouble in transacting the business of the estate, and that the $100 was paid seventeen years after anything had been done by the administrator in closing up the estate and after this action was begun, the administrator was not entitled to have any allowance out of the estate for the fee of $100. The defendant Frost, administrator, excepted to these findings of the referee, the exception was sustained, and the (644) plaintiff excepted. There was error in the ruling of his Honor. We think that the administrator should not have been allowed the $100 fee which he paid to his attorney out of the assets of the estate, for the reason that the service rendered by the attorney was for the attempted prevention of the recovery against the administrator by the distributees of that which belonged to them.

It follows from what we have said as to the ruling of the court on the attorney's fee of $100 that the ruling in sustaining the exception of Frost, to which the plaintiff excepted, was erroneous, and that the amount, therefore, of the balance which the referee reported to be due by the administrator was the correct amount — the nonallowance of commissions to the administrator to the referee having been approved by his Honor.

The fifteenth finding of fact is as follows: "That after the death of W. Stonestreet and appointment of E. Frost as administrator of his estate, and execution issued on said judgment against Stonestreet prior to his death was presented to the administrator by the sheriff and payment demanded of him, within one year from the date of his appointment as administrator, and the administrator did not dispute the debt or the liability of the estate to pay the same, but declined to pay for lack of assets in his hands at the time, and recognized said judgment as a valid debt against the estate." Upon that finding of fact the referee found as a conclusion of law 5, that the demand by the sheriff of Frost, administrator, within one year from the date of his appointment as administrator for payment of the judgment of Fulford, treasurer, against W. Stonestreet and the presentation of execution therefor was a (645) sufficient presentation of the claim to the administrator, and especially so as he did not dispute its validity, but recognized it as a valid debt against his intestate's estate, and also afterwards, at the request of one of the distributees agreed to put off the final settlement of the estate so that it might pass out of date. 6. That at the time said execution was presented and payment demanded of said administrator, the said judgment was not barred by the statute of limitations, but was a valid judgment against the estate of W. Stonestreet. 7. That upon the presentation of said judgment and recognition of its validity by the administrator, it became unnecessary for the holder to bring action to stop the running of the statute. 10. That no final settlement having ever been filed by the administrator, the claim of plaintiff and the debt of the board of commissioners of Davie County are not barred by any statute of limitations as to him, and that the said judgment of Fulford, treasurer, against W. Stonestreet must be paid by the administrator before the distributees receive anything, and as there is not sufficient assets of the estate to pay said debt that ever came into the hands of the administrator, the board of commissioners of Davie County are entitled to judgment against E. Frost for the sum of $5,000, to be discharged on payment of the sum of $544.59 with interest thereon from 5 March, 1879, and on $29.20 from 11 October, 1881, and on $29.25 from 7 April, 1881. The exceptions to these findings were overruled and the court rendered judgment in favor of the commissioners of Davie County in accordance therewith.

It would seem that this was a strict and proper compliance with the provisions of The Code, sec. 164. The execution was not unadvisedly issued nor void, as it is found as a fact that it was issued prior (646) to the death of W. Stonestreet; the sheriff was the agent of the judgment creditor, the county treasurer, to collect the execution, and upon the death of the judgment debtor he presented it to the administrator, "who did not dispute its validity, but recognized it as a valid debt against his intestate, and also afterwards at the request of one of the distributees agreed to put off the final settlement of the estate so that it might pass out of date." In the same finding it is said that the sheriff, within one year after the qualification of the administrator, demanded of him "payment of the judgment of Fulford, treasurer, against W. Stonestreet" and presented the execution therefor. It is difficult to see how the county could have done more. The debt was merged in the judgment, and the judgment was recorded in the courthouse. The official agent of the county for purposes of collection, on behalf of the plaintiff in the judgment (the county treasurer) demanded of the administrator payment thereof and presented as evidence of the judgment and amount thereof the execution which had been issued thereon prior to the judgment debtor's death. The administrator acknowledged the validity of the debt — "recognized the judgment as a valid debt against his intestate." This would have been a sufficient "filing" if the judgment creditor had been a private individual, and there can be no reason why it should not be so when the plaintiff in the judgment is a county treasurer who is faithfully endeavoring to protect the rights of the public. Turner v.Shuffler, 108 N.C. 642; Brittain v. Dickson, 104 N.C. 547. If the county had lost the debt by the failure of its treasurer to present it, he would have been liable on his bond, but having presented it like any other creditor (who could do so by an agent), upon admission by the administrator of its validity, the amount being ascertained by (647) the judgment, there was no reason why the treasurer should have instituted suit. Had he done so, he should have been taxed with the costs individually.

The creditor can never compel the administrator to "string" the claim. He has done his part when he has presented it to the administrator with sufficient certainty as to the nature and amount of the debt, and the admission of its validity by the administrator dispenses with any formal proof thereof. When the administrator admitted the validity of the judgment he admitted the correctness of the amount. There was nothing else to prove.

Modified and affirmed.