Summary
In Glen v. Kimbrough, 58 N.C. 173, it was held that the lapse of thirty-four years did not bar an action by the administrator de bonis non against the representatives of the first administrator when there was no administrator de bonis non during that period.
Summary of this case from Burgwyn v. DanielOpinion
(December Term, 1859.)
Where an administrator of an estate died without having rendered an account or made a settlement, and administration de bonis non was not taken on the estate of the intestate until after the lapse of thirty-four years, it was Held, in a suit begun immediately after the grant of such administration, that no presumption of settlement, satisfaction, or abandonment arose from the lapse of this time, but that such administrator de bonis non was entitled to an account against the representative of the deceased administrator.
CAUSE removed from the Court of Equity of YADKIN.
Fowle for plaintiffs.
Boyden for defendants.
The facts of the case are fully stated in the opinion of the Court.
George Kimbrough, Sr., the testator of the defendants, was the executor of George Kimbrough, Jr., and therefore the defendants, upon a well-known principle, became the executor of the first testator. It appears, furthermore, that George Kimbrough, Jr., was the administrator of Philip Howard; that he took administration in 1818, and died in 1823, without settling the estate of his intestate, and thereupon such property as was left unadministered passed into the hands of the testator of the defendants. There was no representative of the estate of Philip Howard from 1823 until 1857, when complainant took out letters of administration de bonis non and soon after brought this bill for an account of his intestate's estate.
We think, upon this state of facts, the administrator de bonis non is entitled to an account from the defendants, who, as we have said, are the executors of the first administrator. A long time has elapsed, but any presumption which might arise from a mere efflux of time is perfectly rebutted by the fact that there was no one, from the death of George Kimbrough, Jr., to the grant in 1857 of administration de bonis non who was legally authorized to make a settlement. (174)
There is no statute bar in a case of this sort but from long lapse of time a presumption at common law will arise that there has been either a settlement or an abandonment.
It does not appear how the estate of Howard was administered. It seems that two slaves were divided as late as 1837, at the instance of George Kimbrough, Sr., among the next of kin, and it is averred generally by his executors that the estate was exhausted in the payment of debts, and proved insolvent, but no account was audited by commissioners and none at any time rendered or filed. There was no settlement or attempt at settlement with those entitled, and the estate thus unadministered passed, after the death of the administrator, into the hands of his executor, George Kimbrough, Sr.
The most favorable view which can be taken of the possession, or tenure, by which the testator of the defendants held, is upon an implied trust. With respect to such a trust, after the lapse of twenty years and the absence of all proof as to the truth of the matter, a presumption of payment or satisfaction or abandonment will arise; but this presumption is one of fact and is rebuttable, and where it appears it has not been settled, or where it appears there was no one with the legal power to make a settlement, the presumption is rebutted.
State demands are unwillingly countenanced in courts. Interference in behalf of those who sleep on their rights or who procrastinate them until evidence has passed away is reluctantly awarded, even where there is no statute bar; but where the delay is explained and the common-law presumption repelled, we feel constrained to subject the matter to investigation by decreeing an account.
The conclusion is warranted by the cases of Falls v. Torrence, 11 N.C. 412; Bird v. Graham, 36 N.C. 196.
PER CURIAM. Decree accordingly.
Cited: Long v. Clegg, 94 N.C. 767; Burgwyn v. Daniel, 115 N.C. 119.
(175)