Nichols v. Dunn, 22 N.C. 287, 2 Dev. & Bat. Eq. 287 (1839)

June 1839 · Supreme Court of North Carolina

22 N.C. 287, 2 Dev. & Bat. Eq. 287

RICHARDSON NICHOLS et. al. vs. JOHN DUNN et. al.

When an executor returns an account of sales in which he sets forth, besides the property, the amount of sales whereof is stated, several lots of corn, cotton, &c., as being sold at the same time, with the prices pet-bushel or pound stated, but without giving the quantity of any one of them, or carrying out their amount in money, a commissioner, in ta-lcing an account of the estate, cannot reject these articles; but should call upon the executor, upon whom the burthen of proof is thrown in such case, for explanation in regard to them; and, if none be afforded should charge him with an amount making the assets at least equal to the disbursements.

On taking the account of the administration of the personal assets of William Keeling, deceased, by his executor, the defendant, 'Dunn,- as directed by the decretal order of this Court, the Commissioner reported that the said executor received assets but to the amount of $180:04 cents, while he paid debts of his testator, and made other disbursements on account of the estate of his testator, to the sum of $308:07, leaving a balance due to the said executor, and for which he was, in equity, a creditor, as against the real estate of the testator, in the qum of $128:03 cents. To this report the' defendants, the devisees of said real estate, excepted, and all their-exceptions substantially presented the same objection. It appeared, from the evidence accompanying, and referred to in the report, that the commissioner fixed the amount of assets at the said sum of $180:04 cents, from that amount being charged by the executor against himself, in an account of sales returned by him to the County Court. But the same account sets forth,1 besides the property, the amount of the., sales whereof was stated as aforesaid, several !t lots of corn, wheat, cotton and wool,” as being sold at the same time; stated the prices per bushel or pound at which these articles were severally sold; but gave not the quantity of any of them, nor carried out their amount in money. Upon this evidence, unexplained, the commissioner, being unable -to ascertain the value of those omitted articles, left them out of his account of the amount of assets — and to this the said defendants excepted.

Badger for the plaintiff.

W. A. Graham and J W. Norwood for the defendants.

Gastojv, Judge,

having stated the case as above, proceeded as follows: The Court is of opinion that the exceptions are to be allowed, and the report set aside. This evidence threw the burthen of explanation on the executor, and those who claim through him, the alleged creditor of the real estate. If no explanation were given, the commissioner ought to have inferred that the assets were at least equal to his disbursements. As the mistake of the Commissioner may have prevented explanations which otherwise might and would have been rendered, the Court, while it sets aside the report, re-commits the cause for making the inquiries heretofore ordered. '

Per Curiam. Order accordingly.