Duke v. Ferebee, 52 N.C. 10, 7 Jones 10 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 10, 7 Jones 10

WILLIAM A. DUKE, Adm’r. de bonis non of ABNER ROBINSON v. SAMUEL W. FEREBEE, Executor of SAMUEL FEREBEE.

An action will not lie against an executor of an administrator for a demand against the estate of the latter’s intestate; but administration de bonis non must be taken in order to reach such estate.

Action of assumpsit, tried before Manly, J., at the last Superior Court of Currituck.

Administration on the estate of Abner Robinson was granted in.1811, by the County Court of Currituck, to Samuel W. Eorbes, and he having died in the same year, administration on 1ns estate was granted to Samuel Ferebee. The latter (Samuel Ferebee) afterwards made a will, appointing the defendant his executor and died. The latter having proved the will and qualified as executor, this suit was brought against him by the plaintiff as administrator de bonis non of Robinson, for a balance due to the estate of Robinsou from the estate of Forbes.

The foregoing facts were presented in a case agreed, and submitted for the judgment of the Court. It was insisted by the defendant’s counsel, that this suit could not bo sustained against the defendant, for that he could not represent the estate of Forbes, and that could only be reached through an administrator de bonis non on the estate.

His Honor over-ruled the objection, and gave judgment l'o.r the plaintiff. Defendant appealed.

W. A. Moore, for the plaintiff.

Winston, Jr., and Johnson, for the defendant.

Battle, J.

Several objections have been taken to the recovery of the plaintiff in the present case, one of which is so manifestly fatal to the action, that it is unnecessary for us to notice any other. If an executor or administrator die intestate before he has completed the settlement of the estate of his testator, or intestate, by paying the debts, and also by assenting to, or paying the legacies, or making distribution, an administrator de bonis non of such testator or intestate, must be appointed for the purpose of completing such settlement. It was upon that principle, and with that view, the administration de bonis non on the estate of the first intestate Robinson, was taken out in the present case. If any thing were due to that estate from the first administrator, Forbes, it might have been recovered, upon his death, from his administrator Samuel Ferebee, provided administration de bonis non had been taken out and suit brought in proper time. When Samuel Ferebee died, his executor, Samuel W. Ferebee did not become the representative of Forbes, and, of course, is not liable for the debts or obligations of his estate. See 2 Ohitty’s Blackstone, 422, 423. Administration de bonis non must be taken out on the estate of Forbes, for such administrator is the only person who can sue the present defendant, as the representative of Samuel Ferebee, for any assets or debt which he may have had or owed, at the time of Ms death, to the estate of his intestate, Forbes, and then such administrator de bonis non of Forbes, will be the only person who can be sued on any debt or liability of Forbes to the estate of his intestate, Robinson, now represented by the present plaintiff.

The principles above enunciated, will be found fully and clearly set forth in the cases of Taylor v. Brooks, 4 Dev. and Bat. Rep. 139; State v. Johnston, 8 Ire. Rep. 381 and 397, State v. Britton, 11 Ire. Rep. 110.

The judgment in favor of the plaintiff, on the case agreed, must be set aside, and a judgment be entered for the defendant.

Peb Cubiam,

Judgment reversed.