State ex rel. Ross v. White, 29 N.C. 116, 7 Ired. 116 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 116, 7 Ired. 116

THE STATE, ON THE RELATION OF ELIZA J. ROSS, vs. HARRISON WHITE & AL.

When a suit is brought upon an administration bond, the defendants have a right, under the plea of the general issue, to shew that the supposed intestate was alive at the date of the letters of administration and of the bond, the County Court in such case having no jurisdiction.

In like manner the relator of the plaintiff can shew that the person alleged to have been dead, intestate, was not the peison, whom the defendants offered to prove was then alive, but some other person of the same name, who was then actually dead. =

Appeal from the Superior Court of Law of Bertie County, at the Spring Term, 1340, bis Honor Judge Bailey, presiding.

This was an action of debt brought upon an administration bond, in the usual form, on the relation of Eliza J.Iloss. The breach assigned was in not paying to the relator her distributive share of the estate of William Ross the elder, to which the defendants pleaded general issue, payment and set-off, conditions performed and not broken. The records of the County Court of Bertie shew at July term, 1835, the following entry, to-wit: Ordered, that letters of administration on the estate of William Ross, be granted to Harrison White, upon his entering into bond with Meedy White and Whitmell Hughes securities, in the sum of one thousand dollars. At the same time, Harrison White, with the other defendants as his surety entered into said bond, which was received by the Court. The defendant then introduced one William Ross as a witness, whose testimony was received by the Court, reserving the question of its admissibility. This witness stated, that William Ross the elder, on whose estate the administration had been granted, was the father of the witness, and of the relator of the plaintiff, that he, the witness, saw the said William the elder in 1839 alive, that he' had understood that his father died in 1840. The defendants insisted, that upon this evidence, the grant of administration and the bond taken thereupon were void; that if this was not so, there was no sufficient delivery of the bond and no breach of the conditions, so as to entitle the relator of the plaintiff to recover. It was agreed that a verdict should be entered for the plaintiff, with an understanding, that if his Honor should be of opinion with the plaintiff upon the question reserved, the verdict should stand ; if not, that it should be set aside and a non-suit entered. It was further agreed, that $70 72, with interest from 15th November, 1845, was the amount of damages if the plaintiff should be entitled to recover. His Honor, upon the question reserved, was of opinion with the plaintiff, and judgment was entered up accordingly, from which judgment an appeal was prayed and granted to the Supreme Court.

No counsel for the plaintiff.

No counsel for the defendants.

Daxiel, J.

The defendants proved, that William Ross, the supposed intestate, was alive at February Sessions 1835, of Bertie County Court, and long thereafter. This evidence was offered to show, that the County Court had then no power or jurisdiction to grant letters of administration on the estate of Ross, or to take the bond for the State, which is now sued on. The Court was of opinion that this evidence was improperly admitted, and disregarded it. The reasons that induced his Honor to come to this opinion, are not stated in the case. It seems to us, however, that the evidence was very proper and legal. The Court of Pleas and Quarter Sessions of the County, where the intestate had his usual residence at the time of his death, had power and jurisdiction to grant letters of administration, and take bond, &c. Rev Stat. 272. If the County Court of Bertie took the defendant’s bond for the faithful administration of the personal estate of William Ross, when he was alive, it was done without au-tborityv They were not the, agents for the State to take such a bond, and the defendants might well show the same in evidence under the general issue. If the defendants be precluded from showing that one William Ross had died intestate, it would yet remain for the relator, to show that her father was the William Ross ; since to that person in particular is she one of the next of kin. The bond given only recites that a certain William Ross was dead, and does not specify that he was the relator’s father; and therefore the defendants could surely show, that he was not, and that her father was in fact living.

• We think, that the judgment must be reversed, and a judgment of non-suit entered.

Per Curiam, ' Judgment reversed. .