For the purpose of testing the sufficiency of the complaint, the demurrer to the original complaint and the demurrer ore terms to the amended complaint admitted the following facts:
C. T. Cherry devised and bequeathed his entire estate to plaintiff ■and defendant in equal shares for life and named defendant his executrix. At the time of his death Cherry was the sole owner of a bank deposit in the amount of $9,280.74 which was carried in the name of C. T. Cherry or Sadie Cherry Singleton, and the funds in this account passed under his will at his death. Following the filing of her final account as executrix, defendant appropriated all of the net funds in the bank deposit to her own use and refused to deliver over to the plaintiff her share.
On these allegations Judge Paul sustained the demurrer; Judge Fountain overruled it. The amended complaint, while amplifying these allegations with evidenciary details, dates, and figures, added nothing to the basic statement of plaintiff’s cause of action.
Judge Fountain was, therefore, without authority to overrule the demurrer; he was bound by Judge Paul’s prior ruling. Wall v. England, 243 N.C. 36, 89 S.E. 2d 785; Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E. 2d 82. However, since this case has been here once before, we deem it proper to discuss it further.
The question raised by the demurrers is not the determinative question in this case. Here, the individual who has allegedly converted an asset of the estate which rightfully belongs to the plaintiff is the executrix who did not list it in her final account. However, plaintiff has not sued her in her official capacity but, =only as an individual.
If the bank still retained the money, plaintiff could not maintain an action for it; such an action could only be maintained by Cherry’s personal representative. Spivey v. Godfrey, 258 N.C. 676, 129 S.E. 2d 253. Mayo v. Dawson, 160 N.C. 76, 76 S.E. 241. This would be true even though the executrix had filed her final account. The fact that an administrator or executor has filed his final account does not deprive him of his right to receive or to recover an asset of the estate thereafter discovered. Foil v. Drainage Com’rs., 192 N.C. 652, 135 S.E. 781; Edwards v. McLawhorn, 218 N.C. 543, 11 S.E. 2d 562; Best v. Best, 161 N.C. 513, 77 S.E. 762. It is likewise well settled that the filing of a final account does not discharge a personal representative of his trust as to property of the estate remaining in his hands. King v. Richardson, 136 F. 2d 849.
The purpose of this action, in its final analysis, is to secure a proper accounting and settlement of the estate of C. T. Cherry. It is in the nature of a bill in equity to surcharge and falsify the final account *152of the executrix, and it may be brought by an heir or legatee. State v. McCanless, 193 N.C. 200, 136 S.E. 371; Rudisill v. Hoyle, 254 N.C. 33, 118 S.E. 2d 145; Thigpen v. Trust Co., 203 N.C. 291, 165 S.E. 720. Obviously the executrix is the party defendant to such an action. Vollers Co. v. Todd, 212 N.C. 677, 194 S.E. 84; Davis v. Davis, 246 N.C. 307, 98 S.E. 2d 318.
The query presented by this case is: When an executor has filed his final account which omits a legacy, must the legatee, in an action to recover it from the executor, first surcharge his final account? The answer is YES.
“To surcharge is to allege an omission; to falsify is to deny the correctness of certain of the items rendered.” Warner Robins Sun v. Clary, 98 Ga. App. 500. We find a further and more complete definition in 2 Story’s Equity Jurisprudence, (14th Ed.) sec. 701, where it is said:
“These terms, ‘surcharge’ and ‘falsify’, have a distinct sense in the vocabulary of Courts of Equity a little removed from that which they bear in the ordinary language of common life. In the language of common life we understand ‘surcharge’ to import an overcharge in quantity, or price, or value, beyond what is just, correct, and reasonable. In this, sense it is nearly equivalent to ‘falsify’; for every item which is not truly charged as it should be is false, and by establishing such overcharge it is falsified. But in the sense of Courts of Equity these words are used in contradistinction to each other. A surcharge is appropriately applied to the balance of the whole account, and supposes credits to be omitted which ought to be allowed. A falsification applies to some item in the debits, and supposes that the item is wholly false, or in some part erroneous. This distinction is taken notice of by Lord Hardwicke, and the words used by him are SO' clear that they supersede all necessity for further commentary. ‘Upon a liberty to the plaintiff to surcharge and falsify,’ says he, ‘the onus pro-bandi is always on the party having that liberty; for the court takes it as a stated account and establishes it. But if any of the parties can show an omission for which credit ought to be, that is a surcharge; or if anything is inserted that is a wrong charge, he is at liberty to show it, and that is a falsification. But that must be by proof on his side. . .’ ”
It would be impossible for plaintiff to recover in this action without, in effect, surcharging the final account of the executrix which is prima facie correct. Bean v. Bean, 135 N.C. 92, 47 S.E. 232. Plaintiff's *153claim to one-half of the bank deposit for which she has sued is based solely upon the provision in the will of Cherry which makes her one of his two legatees. Obviously she cannot recover any part of the fund -unless the deposit is -an asset of his estate.
This action calls into account defendant’s distribution of the estate and therefore involves her official acts as executrix. Montford v. Simmons, 193 N.C. 323, 136 S.E. 875. This cannot be done in an action to which the executrix is not a party and making the individual who also happens to be the personal representative a party will not suffice.
In Clark v. Schindler, 43 Ind. App. 269, 87 N.E. 44, the auditor of Marion County, alleging that the property of S had not been listed for taxes from 1893 through 1900, brought an action to set aside the final account of M (Margret Schindler) executrix of S. M. had distributed the estate to the heirs of whom she was one. The statute authorized such a proceeding but required that the executor or administrator of the estate must be made a party defendant. M as executrix was not made a party. In dismissing the action on this, and other grounds, the court said: “Margaret Schindler, as executrix, is not -made a party. Margaret Schindler, .as heir, may be the same person, but they are not sued in the same right and for the purposes of this action are different persons ... In the failure to make the executrix a party there was a nonjoinder of parties.”
Of course, an action against -an executor or administrator for failure to perform his official duties or for a conversion of estate funds is also a claim against him personally and, if sustained, .a personal judgment should be entered against him. “A judgment against an administrator ascertaining and directing the payment of -a final balance against him in a suit for an accounting and settlement of the estate is a judgment against him personally.” 21 Am. Jur., Executors and Administrators, Sec. 966.
The complaint affirmatively discloses that the plaintiff has no cause of action against the defendant in her individual capacity. This is a defect upon the face of the record proper of which the Supreme Court on appeal will take notice and ex mero motu dismiss the action. Fuquay Springs v. Rowland, 239 N.C. 299, 79 S.E. 2d 774; Skinner v. Transformadora, S. A., 252 N.C. 320, 113 S.E. 2d 717. The action is dismissed for failure of the complaint to state a cause of action.