Opinion
(December Term, 1859.)
An action will not lie against an executor of an administrator for a demand against the estate of the latter's intestate; but administrator de bonis non must be taken in order to reach such estate.
ASSUMPSIT, tried before Manly, J., at the last term of CURRITUCK.
W. A. Moore for plaintiff.
P. H. Winston, Jr., and Johnson for defendant.
Administration on the estate of Abner Robinson was granted in 1811, by the County Court of Currituck, to Samuel W. Forbes, and he having died in the same year, administration on his 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 Robinson 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 be 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 overruled the objection, and gave judgment for the plaintiff. Defendant appealed.
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 anything 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 Chitty'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 his 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, 20 N.C. 273; S. v. Johnson, 30 N.C. 381 and 397; S. v. Britton, 33 N.C. 110.
The judgment in favor of the plaintiff, on the case agreed, must be set aside, and a judgment be entered for the defendant.
PER CURIAM. Reversed.
Cited: Strickland v. Murphy, post, 245; Latta v. Russ, 53 N.C. 113; Badger v. Jones, 66 N.C. 308.
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