Summary
In Armistead v. Harramond, 11 N.C. 339, it was held that a judgment against an administrator was evidence against his surety of the existence of the debt upon which the judgment was recovered, though it was not at that time evidence against the surety that the administrator had sufficient assets with which to discharge the indebtedness.
Summary of this case from R. R. v. Lassiter Co.Opinion
June Term, 1826.
1. A judgment obtained against a deceased person during his lifetime, and a second judgment obtained thereon against his administrator after his death, are both as to the administrator and his securities evidence of a debt by the intestate; but not evidence against the securities that the administrator has or had assets to discharge it.
2. But if the administrator has returned an inventory, such inventory is prima facie evidence against the securities of assets to that amount.
APPEAL from Nash, J., at WASHINGTON.
Gaston and Hogg for plaintiff.
William B. Harramond, the defendant, had been appointed by Washington County Court administrator upon the estate of Benjamin Fessenden, and the other defendants were Potter, one of his securities in the administration bond, and Flower and Fagan, administrators of Webb, the other security.
This action was brought upon the bond, and upon the trial before Nash, J., the real plaintiff, after proving the bond, gave in evidence the record of a judgment obtained by him against Fessenden (340) in his lifetime, which was objected to, but received by the court. He further produced the record of a judgment obtained by him on the judgment last mentioned, against Harramond as administrator of Fessenden, on which an execution had issued against the goods and chattels of Fessenden in the hands of Harramond, which was returned "Nulla bona." At the succeeding term the plaintiff and Harramond corrected by an entry on the record a mistake which had been made in the calculation of the amount of the judgment against Harramond, an alias issued for the amount as amended, and was returned "Nulla bona." Plaintiff's writ issued before this last execution was returned.
The plaintiff further produced the inventory returned by the defendant Harramond as evidence of assets in his hands.
The defendants Potter and the administrators of Webb offered in evidence certain bonds, notes, and open accounts against Fessenden which, as they alleged, Harramond had paid before he had any notice of the judgment against his intestate. The evidence was rejected, and the court instructed the jury that the record of the judgment against Harramond was no evidence against the other defendants.
The jury found a verdict against all the defendants, and the case stood here upon a rule to show cause why there should not be a new trial.
The judgment obtained against the defendant's intestate (Harramond), as well as that obtained against Harramond himself as administrator, is evidence of a debt due from his intestate, and he is bound by such evidence. The securities of Harramond, the other defendants, are not concerned in interest whether such debt is due or not; because if the assets are not liable to creditors they are subject to the claims of legatees; and the administrator, Harramond, is as much bound for the faithful administration in the one case as in the other, and (341) it is only for the faithful administration of the personal estate by the administrator that his securities are bound.
But although the judgment against the administrator is evidence against him of a debt due by the intestate, and is evidence also of assets in his hands to discharge it; and although, for the reason before given, it is also evidence of a debt due, as far as it relates to his securities, yet it is not evidence against them that he has assets to discharge it, and thereby subject them to the payment of the debt, in case nulla bona is returned on an execution against the administrator. Whether the administrator has wasted the assets or not is an inquiry in which the securities are interested, and the judgment ought not to be introduced as evidence of the affirmation, because they are neither parties nor privies to that judgment. This principle was laid down in McKellar v. Bowell, ante, 34.
But as to the question of assets, I think the securities are bound prima facie by the inventory returned by the administrator. They have stipulated in the administration bond that the administrator shall return a true and perfect inventory of the personal estate, and that he shall well and truly administer it according to law. This is for the benefit of creditors and legatees, and when it is done, it should be evidence prima facie against them of assets to that amount, as evidence of the faithful administration of such assets would be evidence for them.
In Chairman v. Springs, 10 N.C. 43, the judgment was certainly evidence to prove that a debt was due from the estate of Henderson, the intestate, to the plaintiff; but it was not admissible against the defendants, the securities of the administrator, to prove the fact either that the administrator had assets or had wasted them; because, if this was the case, they were liable for the amount; and that fact ought not to (342) be proved by a judgment and proceeding to which they were neither party nor privy; and it appears that it was in part offered in evidence for that purpose, and that that was the reason why an appeal was taken to this Court; for it does not appear that any other evidence was offered to prove assets in the hands of the administrator, or that he had wasted them. It is stated in the manuscript returned to this Court that the judgment, with other evidence, was offered, etc., but it does not appear what that other evidence was; we cannot take it for granted that it established assets in the hands of the administrator, and that the judgment was offered only to establish the fact that a debt was due. If this was the case, it was admissible, but not to prove assets in the possession of the administrator, or that he had wasted them. For these reasons, I think the rule for a new trial, etc., should be discharged in the present case; the judgment was evidence of the debt, the inventory evidence of assets, etc.
The rest of the Court concurring, Affirmed.
Cited: Jones v. Biggs, 33 N.C. 413; Strickland v. Murphy, 52 N.C. 244; Bond v. Billups, 53 N.C. 424; Brown v. Pike, 74 N.C. 534; Lewis v. Fort, 75 N.C. 252; Badger v. Daniel, 79 N.C. 387; Speer v. James, 94 N.C. 424; Grant v. Reese, 94 N.C. 724; Morgan v. Smith, 95 N.C. 400; Leak v. Covington, 99 N.C. 562; Brown v. McKee, 108 N.C. 393; Miller v. Pitts, 152 N.C. 632.