Ferebee v. Baxter, 34 N.C. 64, 12 Ired. 64 (1851)

June 1851 · Supreme Court of North Carolina

34 N.C. 64, 12 Ired. 64

SAMUEL FEREBEE vs. ISAAC BAXTER & AL.

Upon the death of an administrator, the duty of settling up the estate devolves on the administrator de bonis non. The representative of the first administrator has nothing to do with' it, except to account for and deliver over to the administrator, de bonis non, such assets as may remain undis-posed of.

Creditors cannot sue him directly, nor have they a right of action on the first administrator’s bond ; for the bond does not vary nor add to the duties or liabilities of an administrator, but merely increases the security for performance of his duty.

A judgment obtained by a creditor against the administrator de bonis nor? ascertaining the amount of the debt, but declaring that this administrator has no assets, will not vary the principle.

The cases of tire State v Johnson, 8 Ire. 392, State v Britton, 11 Ire. 110, and State v , II Ire. 1$0, cited- and approved.

Appeal from the Superior Court of Law of Currituck County, at the Fall Term, 1850, his Honor Judge Caldwell presiding.

This is an action of debt upon the administration bond of one Jesse Doxey, who was the administrator of James Doxey, deceased.

The facts of the case are as follows.: The said Jesse, after the expiration of two years from his administration, paid over to the next of kin all the estate in his hands : he died some time in the year — and Benjamin Simmons became the administrator de bonis non of said James Doxey: the plaintiff brought suit against the said Simmons upon a cansé of action, which accrued between the death of said Jesse and the grant of letters of administration de bonis non to said Simmons : the said Simmons, in the suit against him, pleaded fully administered. t)n the trial, the jury found in favor of the plaintiff as to the debt, and in favor of said Simmons on the plea of fully administered. There was no judgment on the verdict, other than such as the law implies. This suit is brought to recover the amount of the judgment.

The Court was of opinion, that the action could not be sustained, and in submission to this opinion, the plaintiff submitted to a non suit. A motion to set aside was refused and the plaintiff appealed.

No counsel for the plaintiff-

Heath, for the defendant.

P.earsoN, J.

Upon the death of an administrator, the duty of settling up the estate devolves on an administrator de bonis non. The administrator of the administrator has nothing to do with it, except to account for and deliver over to the administrator de bonis non, sitch of the assets as have not been disposed of by the first administrator in the due course of administration.

Creditors and distributees must look to the administrator de bonis non, for he represents his intestate. There is no privity between them and the administrator of the administrator. They cannot sue him directly, nor have they a right of action on the administration bond executed by his intestate. This bond does not vary or add to the duties of or liabilities of an administrator, but merely increases the security for the performance of his duty. State v Johnson, 8 Ire. 397, State v Britton, 11 Ire. 110, State v , Ire. 160.

We prefer to put our decision on the broad principle, and lay no stress on the fact, that the debt in this case did not become due until after the death of the first administrator.

The circumstance, that the debt has been ascertained by a judgment, seeins to be relied on by the plaintiff', for the purpose of talcing his case out of the operation of the general principle. We are at a loss to perceive how it can have that effect. In the first place, such a judgment is unknown-at commonlaw, and there is no statute 'to warrant it. At common law, no plaintiff could take judgment, without showing a liability on the'.part of the defendant. The judgment qumi-do was not an ‘exception; for, it did not, in fact, become a judgment until assets came to hand. Our statutes authorise a judgment, when the defendant is not shown to be-liable in but three cases — where “ no assets” is pleaded, or before a single justice, when a creditor admits the personal ‘■estate to have been fully administered, and seeks to charge the real estate, and where a creditor seeks to proceed on the '■refunding bond. So, the judgment in this case, not being ■authorised either at common law or by statute, can have no Torce or effect.

In the second place, as there was no privity or cause of -action before the .judgment, it is impossible that such a .judgment can have the effect of creating a privity, and giving the plaintiff a cause of action against a stranger. We ■imagine this experiment was suggested by some supposed analogy to the ..proceeding in equity, where relief is given after a creditor has ascertained his debt-atlaw and is unable 'to obtain satisfaction. There is, in fact, no analogy. The action in this case is of the first impression, and has neither .principle, authority, or analogy to support it.

Per 'Cuimam-. Judgment affirmed.