Furr v. . Brower , 79 N.C. 408 ( 1878 )

The parties waived a jury trial and under the Court found the facts: The defendant, Brower, administered upon the estate of Upshur Furr who died intestate in 1858, and executed a bond with the other defendants as sureties. The plaintiffs are the next of kin and distributees of the intestate whose estate was worth $4,500 according to the inventory of the defendant. The administrator sold the personal property, except the slaves, on 23 November, 1858, the proceeds of which paid the debts of his intestate. On 2 March, 1861, he sold the slaves for $2,040, upon six months credit by virtue of an order obtained in an ex parte petition of the administrator and the distributees, the plaintiffs, who were minors and represented by a guardian ad litem, for the purpose of a division; and at July Term, 1862, of the County Court, Noah Richardson was appointed guardian of the plaintiffs and filed (409) a petition against the defendant for an account and settlement. An account was taken and the sum of $1,754. 13 found to be due the plaintiffs, and a report of the same was confirmed and judgment entered, at April Term, 1863, of said Court. On 28 April, 1863, the following entry was made on the execution docket of said Superior Court, in the case of Richardson, guardian, etc., against Brower, administrator, etc., — "Paid into office in Confederate money" (the amount due the plaintiffs) and on 9 May, 1863, the following entry: "Received by A. N. McNeill, clerk (the sum) in Confederate money in full of the amount paid in by the administrator," signed by the guardian; which sum was actually paid in by the administrator and received from the clerk by the guardian according to said entries. The defendant sometime previous to 28 April, 1863, collected the notes due him as administrator in Confederate money; and was allowed to retain $80.27 of the said amount found due to meet some outstanding claim, which sum not having been used by him was paid into the clerk's office in November, 1875, for the use of the plaintiffs.

His Honor held that the administrator was not chargeable with any fault or negligence in selling the slaves in 1861, and that he acted properly in collecting the notes taken for the payment of the slaves, especially in view of the fact that a suit was pending against him by the guardian of plaintiffs for an account and settlement, and that he was accountable only for the Confederate money actually received by him. He further held that the judgment, payment into Court, and the receipt of Confederate money by the guardian in May, 1863, were a complete discharge of the administrator and his sureties. Judgment. Appeal by plaintiffs. The plaintiffs contend that the defendant was negligent in this:

1. That on 2 March, 1861, he sold the two slaves which he held as administrator of their father in trust for them. We attach no importance to the fact that the sale was made under an order of the County Court; such orders were almost of course on the petition of an administrator; nor to the fact that the plaintiffs, then infants, represented by their guardian appointed by the Court ad litem were co-petitioners with the administrator. In those days and perhaps now, guardians ad litem were the mere nominees of the administrator and gave no real protection to their wards. The suit was but a form, and if the administrator so pleased, a form to cover a fraud. There is however no appearance of any fraudulent purpose in this case. Supposing the sale to have been altogether the act of the administrator, it does not appear to have been imprudent, much less negligent or fraudulent. It was not inconsistent with a fair purpose and honest judgment to suppose it advisable even as early as March, 1861, to sell slaves.

2. That the administrator, some time before 28 April, 1863, collected the notes given for the slaves which fell due on 2 September, 1861. Perhaps this unexplained might be considered a culpable imprudence. It would depend on the circumstances. At July Term, 1862, of Moore County Court, Richardson became guardian of plaintiffs, and shortly thereafter commenced a suit against the administrator for the fund in his hands. At April Term, 1863, he recovered a judgment, and on 28 April the administrator paid into Court the amount recovered (except a small sum retained for a special purpose by leave of the Court and afterwards paid) which the guardian received and receipted (411) for.

This suit explains and justifies the collection of the notes in Confederate currency. It does not appear that the guardian offered to accept the notes. If his petition was in the usual form, he demanded payment of what was due in money, and thus compelled the administrator to collect in the only money which was then in circulation.

This case differs from Purvis v. Jackson, 69 N.C. 474, in this: There, the plaintiff refused to ratify the act of the clerk in receiving Confederate money, and immediately on being informed of it repudiated it. Here, the guardian of plaintiffs received the money without objection, and thereby ratified its receipt by the clerk.

As to the sum retained to meet certain contingent costs, as it has been paid, it is unnecessary to say anything. We concur in all respects with the Judge below.

PER CURIAM. Affirmed.