{ "id": 8683241, "name": "E. D. HAWKINS, Adm'r, v. J. H. CARPENTER and others", "name_abbreviation": "Hawkins v. Carpenter", "decision_date": "1883-02", "docket_number": "", "first_page": "403", "last_page": "407", "citations": [ { "type": "official", "cite": "88 N.C. 403" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "67 N. C., 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092706 ], "opinion_index": -1, "case_paths": [ "/nc/67/0261-01" ] }, { "cite": "69 N. C., 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2085588 ], "opinion_index": -1, "case_paths": [ "/nc/69/0135-01" ] }, { "cite": "66 N. C., 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277053 ], "opinion_index": -1, "case_paths": [ "/nc/66/0305-01" ] }, { "cite": "65 N. C., 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955374 ], "opinion_index": -1, "case_paths": [ "/nc/65/0378-01" ] }, { "cite": "64 N. C., 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683425 ], "opinion_index": -1, "case_paths": [ "/nc/64/0665-01" ] }, { "cite": "86 N. C., 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274168 ], "opinion_index": -1, "case_paths": [ "/nc/86/0386-01" ] }, { "cite": "67 N. C., 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092706 ], "opinion_index": 0, "case_paths": [ "/nc/67/0261-01" ] }, { "cite": "69 N. C., 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2085588 ], "opinion_index": 0, "case_paths": [ "/nc/69/0135-01" ] }, { "cite": "66 N. C., 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277053 ], "opinion_index": 0, "case_paths": [ "/nc/66/0305-01" ] }, { "cite": "65 N. C., 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955374 ], "opinion_index": 0, "case_paths": [ "/nc/65/0378-01" ] }, { "cite": "64 N. C., 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683425 ], "opinion_index": 0, "case_paths": [ "/nc/64/0665-01" ] }, { "cite": "86 N. C., 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274168 ], "opinion_index": 0, "case_paths": [ "/nc/86/0386-01" ] } ], "analysis": { "cardinality": 434, "char_count": 7706, "ocr_confidence": 0.477, "pagerank": { "raw": 7.259244762335987e-08, "percentile": 0.4328045766374796 }, "sha256": "57215d3a004bb0a9030ff82e988c879636f74a71525745656e772c89a2cc1eae", "simhash": "1:935a0375b6144efe", "word_count": 1315 }, "last_updated": "2023-07-14T19:18:01.131102+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "E. D. HAWKINS, Adm\u2019r, v. J. H. CARPENTER and others." ], "opinions": [ { "text": "Smith, C. J.,\nafter stating the case. It is contended by appellant\u2019s counsel that inasmuch as the answer admits that lands, of sufficient value to pay the debt, descended from the intestate, Micajah, to his heirs-at-law, which could by proper proceedings issued against them by the said Esther have been subjected to the payment of the debt, her failure to convert such real estate into assets for the purpose is itself a breach of the official bond, rendering her and her sureties alike liable, as if by this means the conversion into assets had been effected.\nWe do not concur in this view. The defence set up of a full administration has not been, and ought to be disposed of, and. the course pursued by the court, no jury trial being asked, is warranted by the ruling in Ray v. Patton, 86 N. C., 386.\nNor was the plaintiff entitled to a judgment, fixing assets in the hands of the administratrix, by reason of the failure of the administratrix to pursue the descended real estate for the purpose of converting it into assets. Lands, which may be sold for this purpose under proper proceedings prosecuted by the personal representative, are not, until such sale and the reception of the moneys arising therefrom, assets for which the sureties to the bond can be held responsible.\n\u201c The real estate,\u201d says Dick:, J., delivering the opinion in Fike v. Green, 64 N. C., 665, \u201cwas not assets in the hands of the executors.\u201d\nThe point is made and expressly decided in the subsequent case of Vaughan v. Deloatch, 65 N. C., 378, in which evidence was offered, and on objection admitted, in the superior court to show that the intestate debtor, whose administrator was a defendant in the action, owned lands at his death which descended to his heirs-at-law, and from which the administrator by proper proceedings for a sale could have derived the means of paying the debt.\nReade, J.,\nreviewing the case on appeal, says: \u201cThe only question is, whether real estate is assets to pay debts before the same has been sold and the proceeds received by the administrator? Recent decisions settle the question,\u201d referring to the case recited. \u201cIt may be,\u201d he concludes, \u201cthat in a case of negligence, the administrator would be liable on his bond for not obtaining license and selling, but that is not before us.\u201d\nThe present contention is the same as in that case, that the defendants should be charged with assets because these were lands which their principal, the personal representative, took no steps to sell.\nJBut the complaint shows that the assets received by the admin-istratrix from the husband\u2019s estate, and adequate to meet the debt, were wasted by her; and if so, she could not maintain a proceeding to sell the land. For this devastavit the remedy is upon the bond. Badger v. Jones, 66 N. C., 305; Latham v. Bell, 69 N. C., 135.\nAgain, the descended lands, according to the statement in the answer accepted as the basis of the plaintiff's motion, remain unalienated in the hands of the heirs-at-law of the intestate, Mieajah, and are accessible to his creditors by proceedings conducted for the purpose of converting them into assets by his proper representative, and this recourse is still open to the plaintiff. Pelletier v. Saunders, 67 N. C., 261.\nAs a devastavit is charged, the primary liability for the waste or misapplication rests upon the administration bond, and an inquiry into the fact becomes necessary to ascertain which, in the event of no demand for a jury trial being made, a reference is the appropriate step to be taken in order that the necessary information may be obtained, and this course was pursued.\nWe advert to the omission to make a party to the cause, the administrator de bonis non of the intestate, Mieajah, who, under repeated decisions of this court can alone maintain an action, for the recovery of the unadministered assets, against the former representative, to avoid an inference from our silence that the suit can be supported in his absence from the record. But the point is not presented and we only decide there is no error in the ruling. This will be certified.\nNo error. Affirmed.", "type": "majority", "author": "Smith, C. J., Reade, J.," } ], "attorneys": [ "Messrs. Hoke & Hoke, for plaintiff.", "No counsel for defendants." ], "corrections": "", "head_matter": "E. D. HAWKINS, Adm\u2019r, v. J. H. CARPENTER and others.\nExecutors and Administrators \u2014 Assets\u2014Reference\u2014Parties.\n1. Where a devastavit is charged, the primary liability for the waste rests upon the administration bond, and a reference to ascertain the fact was properly ordered.\n2. A failnre to apply for license to sell land for assets is not of itself a breach of such bond.\n3. Lands descended are not assets until a sale thereof and the receipt of the money by the administrator.\n4. The administrator de bonis non is a necessary party to a suit against the former representative to recover miadrninistered assets.\n(Rag v. Patton, 86 N. C., 386; Fike v. Green, 64 N. C., 665; Vaughan v. Deloach, 65 N. C., 378; Badger v. Jones, 66 N. C., 305; Latham v. Bell, 69 N. C., 135; Pelletier v. Saunders, 67 N. C., 261, cited and approved).\nCivil ActioN tried at Spring Term, 1882, of Rutherford Superior Court, before Gudger, J.\nRobert Scruggs died intestate in November, 1858, and letters of administration on his estate were granted to Mieajah Durham. \"Without having fully administered the trust, the latter also died intestate in December, 1864, and his wife, Esther Durham, became his administratrix, and gave bond as such with the defendants sureties thereon.\nIn 1865, administration de bonis non on the estate of Robert Scruggs was committed to the plaintiff, who, on March 9th, 1878, instituted the present action against the sureties to the bond of Esther Durham, who died several years before, without having settled the estate in her hands.\nThe complaint alleges that Mieajah Durham rendered, at December term, 1863, of the county court, his final account, which was audited and approved by a committee appointed by the court for that purpose, from which it appears there remained in his hands, unadministered, the sum of $112.27, to recover which is the object of the suit.\nThe complaint further states that a large personal estate belonging to him passed into the possession of his administratrix, sufficient to pay his debts, and that no settlement of his estate has been made by her.\nThe defendants, in answer, say that their principal has fully administered the assets which came to her hands of the estate of her husband, and that if any remained undisposed of they were lost and rendered worthless by the results of the war, without negligence on her part, and the defendants are not responsible therefor; that they \u00e1re not informed whether the debt claimed has been paid, but \u201cplead payment,\u201d and insist, if not paid, its recovery is barred by the statute of limitations; and that there is \u201c considerable real estate held by the heirs-at-law of said Mica-jah, which descended to them from Esther Durham,\u201d being part of her estate, and she being the wife of said Micajah.\nThe record states that the jury found \u201cthe issue submitted to them in favor of the plaintiff,\u201d without setting out the issue, and we can only infer from the subsequent action of the court that it related to the indebtedness only, and did not involve an inquiry into the assets of the intestate, Micajah, for which his administrator might be held liable.\nThe plaintiff thereupon demanded final judgment against the defendants upon their bond, which the defendants resisted on the ground that it should be first ascertained whether the admin-istratrix had properly administered the funds with which she is chargeable. The court refused to render judgment, and ordered a reference to inquire as to the assets, and the plaintiff appealed.\nMessrs. Hoke & Hoke, for plaintiff.\nNo counsel for defendants." }, "file_name": "0403-01", "first_page_order": 419, "last_page_order": 423 }