Hooks v. Sellers, 16 N.C. 61, 1 Dev. Eq. 61 (1827)

June 1827 · Supreme Court of North Carolina

16 N.C. 61, 1 Dev. Eq. 61

Hillary Hooks & Mary his wife, v. John Sellers & Wm. Ashford, adm’rs of Josiah Blackman,

From Wayne.

Exceptions to a report upon a reference to take an account, are unnecessary when the Master assigns unsatisfactory reasons for his conclusions.

It seems, that a bill to correct errors in an account, is, in its nature an exception, and to a report on such a bill stating a new account, none need he filed.

The bill which was filed in August, 1819, charged, that Josiah Blackman, was the guardian of the Plaintiff Mary, and received of her property a large sum; that he died intestate, and that administration on his estate was committed to one William Blackman ; that after the intermarriage of the Plaintiffs, to-wit, on the 10th of June, 1816, the Plaintiff Hillary, and William Blackman, came to a settlement of the guardian accounts of the intestate, and that a balance was found to be due the Plaintiff; that in taking the account error was committed, in |10^ charging the intestate with the hire of the negroes and the rent of the land belonging to the ward, for the year’s 1799, 1800 and 1801; that William Blackman died intestáte, and that administration de bonis non, of Josiah Blackman liad been committed to the Defendants. The prayer of the bill was for general relief, and thaifc the De. fendants might by the decree, be compelled to pay the Plaintiffs the sum due them by reason of the errors.

The Defendants, in their answer, admitted all the facts charged in the bill, except the existence of the errors as specified, of which they put the Plaintiffs to strict proof.

Upon a reference to the Mastei’, he reported tliat the errors charged in the bill did exist, and that the sum of $>1274,53 was due the Plaintiffs, from the estate of the guardian. The only evidence reported by the Master was, an account produced by the Plaintiff Miliary, and by him sworn to be the one used by William Blackman, on the settlement in June, 1816, from which the items of hire and l’entfor the years 1799,1800 and 18Q1, after being inserted were erased ; a book proved to be in the handwriting of Josiah Blackman, with an entry on the first page, that it was “ a book to keep the hire of ne-gi’oes belohging to the orphans of William Fellow, deceased,” (the father of the Plaintiff Mary) in which the hire and rent for the above-mentioned three yeax'S was entered without remark, and every other entry in it, relating to the property of the Plaintiff, was incorporated into the account. Also the deposition of one Elliot, who swore that he had been called on as an arbitrator to settle between the Plaintiffs and William Blackman, as administrator of Josiah, that a former account was produced, in which the rent and hire fox* the above-mentioned three years was erased, and that the arbitrators seeing no í’eáson why those erasures were made, had taken the several items into the account.

Upon tin coming in of the report, bis honor Judge BuKKiN pronounced a decree of confirmation, and award- , ed execution. The Defendant not having an opportunity of appealing, brought the cause to this Court by Ger» tiorari.

Although the decree below recited that exceptions were filed, they probably were not reduced to writing, none appeared upon the transcript.

In this Court, Badger for the Plaintiffs,

insisted that the report not being excepted to, must of course stand.

Gaston, contra,

contended, that none were necessary, as the evidence reported plainly did not justify the Master in his conclusion.

Henderson, Judge.

— I can see no grounds upon which the report of the Master can be sustained. That 110 cause is assigned, why items originally inserted in an account, were obliterated, is certainly a very insufficient reason for reinstating them; in the absence of all evidence to prove the propriety, of originally inserting them.

As to the objection that the report was not excepted to in the Court below, we cannot shut our eyes to the unsatisfactory reasons assigned by the Master. In such a case exceptions are unnecessary ; they would only point out that which is suilicientfy obvious. Besides, this being a bill to surcharge and falsify, it is, in its very nature, an exception as to the items complained of, and in the laxity of practice, as yet allowed in this State, in a report like the present, we will look into it without formal exceptions. The decree must be revised, and the cause remanded.

Per Curiam.

— Decree reversed, and the cause remanded.

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