Jones v. Sugg, 136 N.C. 143 (1904)

Oct. 4, 1904 · Supreme Court of North Carolina

136 N.C. 143

JONES v. SUGG.

(Filed October 4, 1904).

1. EXECUTORS AND ADMINISTRATORS — Pleas at Law —References — Accounts.

In an action by heirs against an administrator for an account and settlement, an answer by him that a final settlement had been filed is not a plea in bar, and a reference may be made.

2. REEERENOES — Appeal—Executors and Administrators — Accounts.

The refusal of a motion to refer a proceeding to compel a personal representative to file a final account and settlement is appeal-able.

AotioN by Alice Jones and others against J. T. Sugg and others, heard by Judge M. II. Justice, at February Term, 1904, of the Superior Court of Greene County. From a judgment for the defendant the plaintiff appealed.

G. M. Lindsay, for the plaintiffs.

Jarvis & Blow and Shepherd & Shepherd, for the defendants.

Montgomery, J.

This action was brought for an account and settlement of the estate of J. H. Freeman, deceased. A motion was made by the plaintiffs in the following words: “To refer the action for an accounting as against J. A. Albritton, executor of John Sugg, former administrator d. b. n. c. t. a. of John H. Freeman, and the sureties on his official bond, as to his • administration and dealings with the personal estate of John H. Freeman, upon the pleadings on the ground that the answers set out no valid plea in bar of an acounting.”

It is clear from the record that the motion was denied for the reason that his Plonor thought the answer filed by Albritton, administrator, was in law a plea in bar to the action; and the only question involved in this appeal is whether or not the answer was a plea in bar. The answer in substance was that John Sugg, the testator of Albritton, and the administrator d. b. n. c. t. a. of John II. Freeman, had filed his final account with the estate of Freeman with the clerk of the Superior Court. The filing of such an account was purely ex-parte and was not a plea in bar to the action. That fact might have been admitted by the plaintiffs or it might have been proved on the trial, and yet the plaintiffs would not have been estopped. They could still have had the account inquired into. Tire account as filed was only prima facie correct. The denial of the motion was appealable. It involved a substantial right of the plaintiffs, appellants. Royster v. Wright, 118 N. C., 152. Both matters are so fully discussed in the last-cited ease and in Comrs. v. White, 123 N. C., 534, that we need not pursue the subject. The motion should have been allowed.

Error.