Powell v. Myers, 21 N.C. 502, 1 Dev. & Bat. Eq. 502 (1837)

June 1837 · Supreme Court of North Carolina

21 N.C. 502, 1 Dev. & Bat. Eq. 502

JACOB POWELL et Ux. et al. v. ABSALOM MYERS et al. Exr’s of JOSEPH PICKETT.

June, 1837

1. A judgment confessed by an administrator is prima facie fair, and in the absence of all proof that it is otherwise, is to be allowed in settling the accounts of the administrator.

2. Mere technical informality in the entry of a judgment, is not cause for rejecting it, as a credit in an administrator’s account.

This was a petition for an account of the administration of the estate of John Wright, filed by the plaintiffs against the defendants, the executors of Joseph Pickett, who was administrator with the will annexed of John Wright. There had been a reference of the accounts directed, and the commissioner had rejected certain judgments confessed by Pickett as administrator, because of some informality in them. If these judgments were allowed as charges against the plaintiffs, then Pickett had paid out every thing which came to his hands. There was no allegation of fraud in the administrator, and no proof that the judgments were not for honest debts, or that they had not been paid; the only objection stated to their allowance, being the technical informality above alluded to. The defendants excepted to the report, because of the disallowance of the sum paid in satisfaction of these judgments.

His Honor Judge Settle, at Anson, on the last Circuit, allowed the exception, and dismissed the petition, and the plaintiffs appealed.

Winston, for the plaintiffs.

Devereux, for the defendants.

Gaston, Judge.

The subject matter of this controversy, is an account between the plaintiffs as legatees of John Wright deceased, and the defendants, executors of Joseph Pickett deceased, who was the administrator with the will annexed of the said John Wright, of the administration by the said Pickett, of the assets of his testator. An account was taken by the commissioner, who reported a balance against the testator of the defendants. The balance so reported, arose entirely from the commissioner having rejected as a credit the amount of four judgments rendered against the intestate by nil dicit on suits instituted against him by alleged creditors of his testator, and which judgments were paid off to the creditors. The defendants excepted to so much of the commissioner’s report, as rejected this credit. The Court sustained the exception, and declared the defendants entitled to the credit claimed^ and it therefore appearing that nothing was due to the plaintiffs, dismissed the petition.

It appears to us, that there is no error in the decree below. The only grounds taken for disallowing these judgments are technical irregularities in the proceedings, upon which they were founded. It is not objected, that the debts were not bona fide due; or that the administrator permitted judgments to be rendered for more than was due; or that he did not honestly pay off all that was recovered. Unless some such objections were made and sustained, objections showing, that, in conscience, the administrator was liable to his cestui que trusts for assets misapplied, they cannot have a decree against his representatives. The first duty of the administrator, was to pay off the debts due from his testator ; and all that he has honestly paid off, must be allowed him by those whose claim is posterior to that of the creditors.

It was competent for the plaintiffs, to impeach the judgments for fraud, and as they were rendered by confessions slighter evidence might be sufficient to show fraud, than if they had been rendered after contestation. But they must be presumed to be honest, until they are impeached; and objections for informality merely, are decisive indications that substantial objections could not have been successfully urged.

The decree is affirmed with costs.

Per Curiam. Decree below affirmed.