#### MANN v. BAKER.

(Filed October 9, 1906).

Executors and Administrators — Account and Settlement— Evidence — Burden of Proof — Pleadings—Practice.

1. An action against an administrator for an account and settlement should not be dismissed because not brought “on relation of the State” when it had been pending for years.

2. In an action by the heirs and distributees against an administrator cl. h. n. for air account and settlement, it is competent for them to show any indebtedness due the estate, whether by the former administrator or by other debtors.

3. In an action against an administrator for an account and settlement, when any indebtedness due the estate is shown, the burden is upon the administrator to show that he used due diligence in collecting the same, but was unable to collect, or, having collected, has accounted for the same. It is not sufficient simply to show that the administrator has accounted for the sums he actually collected.

4. In an action for an account and settlement, it is not necessary to specifically set out the debts which the administrator had failed to collect, but it is sufficient to aver a breach of duty in failing to file final account and to fully account and settle.

AotioN by W. H. Mann and others against George S. Baker, administrator of J. B. Mann, beard by Judge E. B. Jones on exceptions filed by plaintiffs to the report of the referee at the April Term, 1906, of the Superior Court of *236EuaNKLIN. Erom tbe judgment rendered tbe plaintiffs appealed.

B. B. Massenberg for tbe plaintiffs.

P. II. Ooolce for tbe defendant.

Clake, C. J.

Tbis is an action by tbe beirs at law and dis-tributees of J. B. Mann against Gr. S. Baker, .administrator d. b. n., for an account and settlement. It was referred, and tbe referee found tbat'J. B. Mann died in 1865 and.II. II. Harris qualified as bis administrator; that in 1810 Harris was removed and W. II. Spencer was appointed administrator d. b. n.; that be dying in 1817, G. S. Baker was appointed administrator d. b. n., .and bas filed no final account. Tbe plaintiff offered to show that W. II. Spencer, tlie former administrator, sold certain real estate of bis intestate, under decree of Court, and received tberefor, as appears by bis recorded returns, tbe sum of $7,252.55. Tbe referee excluded tbis evidence on tbe ground that tbis specific allegation was not made in tbe complaint, and excluded it in making up bis findings on tbe facts and tbe law. Tbe referee found that all tbe funds wbicb had come to tbe bands of defendant as administrator d. b. n. of J. B. Mann bad been properly accounted for, and held as conclusions of law: 1. That tbe action should be dismissed because not brought by plaintiffs “on relation of tbe State.” 2. That defendant, not having filed bis final account, was not protected by tbe statute of limitations. 3. That having disbursed all tbe funds wbicb came into bis bands, tbe defendant was entitled to recover costs against tbe plaintiffs, who were adjudged to have shown no cause of action.

Tbe plaintiffs excepted to tbe first conclusion of law. Tbe Court in its discretion allowed tbe plaintiffs to amend. Besides, as tbe case bad been pending for years, tbis purely technical objection bad been waived and came too late. Brown v. McKee, 108 N. C., 387. Tbe plaintiffs further *237except because tbe referee’s findings are based, as be states, upon an exclusion of tbe record evidence of the sums which came into the hands of the .previous administrator, W. H. Spencer. This is the real point presented by the appeal. It is the 'duty of an administrator d.b.n. to investigate and collect in all sums due the estate, whether by the former administrator, Latham v. Bell, 69 N. C., 135; Smith v. Brown, 99 N. C., 377, or by other debtors.

In an action by the heirs and distributees for a settlement, it is competent for them to show any indebtedness due the estate, and such being shown, the burden is upon the administrator to show that he used due diligence in collecting the same, but was unable to collect, or, having collected, has accounted for the same. It is not sufficient simply to show, as was done here, that the administrator has accounted for the sums he actually collected. Here the Court records offered in evidence showed that the former administrator had received $7,252.55, proceeds of realty of his intestate, which had been sold by order of Court. The defendant as administrator d. b. n. was the only person who could have taken steps to recover that sum or ascertain if it had been properly disbursed. It was his duty to take such steps in apt time, and he is responsible for any loss occurring from his failure to do so. When the plaintiffs offered to show that such sums were reported by the former administrator as being in his hands, they should have been allowed to do so, and the defendant should have been allowed to show that he used due diligence and ascertained that said sum had been accounted for, or that he was unable to collect. It was error to exclude all investigation of that matter; and the referee’s report stating that his conclusions were based upon the evidence of the sums actually collected, excluding this evidence, it was error to confirm it. It is true that the referee offered to allow the plaintiff to amend by specifically charging the failure to collect any sum due by the former administrator, but it was *238not necessary in an action of this nature to specifically set out the debts which the administrator had failed to collect;, and the plaintiff, fearing the amendment would work further delay in an action already long drawn out, declined. It was sufficient to aver a breach of duty in failing to file final account and to fully account and settle. In fact, however, the complaint does allege a balance of $1,021.60 due on amount actually collected, as shown per defendant’s annual account, and further the sum of $7,280.42 due by said administrator, of which plaintiffs averred that they had but recently received information. The complaint is sufficient to show that the action was for ,a full accounting and to recover not only any balance actually collected, but for an account of any sums which the administrator “should have collected.” It was error to exclude evidence offered with that view, and the Judge erred in confirming the report.

Error.