SHELLY v. Hiatt, 52 N.C. 509, 7 Jones 509 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 509, 7 Jones 509

SHELLY AND FIELDS v. HIATT.

Where an intestate and his administrator had .been partners in building a" mill, it was Held that the administrator had no right to retain of the assets-for work done on the mill after the death of his intestate.

Action of debt, tried before Shepherd, J., at a Special Term, (January, I860,) of Guilford Superior Court.

The action was brought against the defendant as the administrator of one Othnial Hiatt. The defense relied on, was the plea of fulhj admimstered and no assets. - A reference was made to Mr. Bwaim, a commissioner, to state an account of the assets, and the only question in the case arises on an exception to his report. It appeared that the defendant’s intestate and the defendant were engaged in building a mill, on Deep Eiver, in copartnership ; that they both being mechanics, worked at the building, and had each done several hundred dollars worth of work at the time of the intestate’s death; that after that event, the defendant continued to work at the mill, and then on a petition to the County Court, the mill was' sold by order of Court, and the intestate’s estate received the benefit of half the proceeds ; the defendant, as copartner, receiving the benefit of the other half. In the commissioner’s report, the defendant charges the estate of his intestate with “ the value of the improvements made by him on the said grain-mill after the intestate’s death, and before the sale of the land, per decree, $35é,64,” which was allowed by the commissioner and excepted to by the plaintiff. It was agreed that if the said exception was sustained, the plaintiff was entitled to a judgment for his debt, and that if it was not sustained, the defendant was entitled to the judgment. The Court below sustained the exception, and the defendant appealed.

McLean, for the plaintiff.

Morehead, for the defendant.

Manly, J.

It will be seen from the written agreement on file, that the case is made to turn upon the allowance or dis-allowance of the first exception on the paiT of the plaintiff to the account taken of defendant’s assets. If the exception be allowed, the plaintiffs are entitled to a judgment for their debt; if it be not allowed, they submit to a nonsuit. The exception, we think, was properly sustained in the Superior Court. The' three hundred and fifty-four dollars and sixty-four cents, which the administrator claimed to retain, was due him by reason of certain expenditures in completing' a mill after intestate’s death, in which the administrator and his intestate were concerned as partners. The partnership being dissolved by the death of one partner, no further partnership liabilities could be incurred. The debt, therefore, did not stand upon the footing of a partnership debt, but was at best a demand for money paid to the use of his intestate’s estate, which a court of equity might possibly assist him in the recovery of, if assets had been left subject to the payment of such a claim.

To sanction this credit in the administrator’s account, would be to allow him to retain his own demand, upon an open account, in preference to the bond-debt of the plaintiffs- — which is against law. The judgment of the Superior Court should be affirmed.

Per Curiam,

Judgment affirmed.