Williams v. . Williams , 17 N.C. 69 ( 1831 )

The defendants demurred to the bill for want of equity. NORWOOD, J., on the last circuit, at JOHNSTON, sustained the demurrer, and dismissed the bill. The plaintiffs appealed. The demurrer rests on two positions: the first is that an administrator makes payments beyond the personal assets at his own risk, and cannot found a claim against the heir upon such overpayment under any circumstances; the second, that if he can recover back the money at all, he has a remedy at law.

The bill is founded on a plain principle of natural justice. It is that the defendants are bound in conscience to pay the plaintiffs the money which their testator paid in discharge of the defendants' debts. In this stage of the case we must take the debts thus paid off to be true ones, and that Isaac Williams really paid the sum of $3,649.27 over and above the assets which came to his hands; and that his executors (71) have received of that only the sum of $2,667.34 from the administratorde bonis non; and that the personal estate is exhausted. If the personal assets had been sufficient, there can be no doubt of the right of the administrator to be reimbursed out of it for any payments made by him. His executors might retain the specific effects until their testator's demand should be liquidated; or in this Court his accounts would be settled, and a satisfaction decreed out of the personal assets, upon a bill against the administrator de bonis non. If the personal estate be fully administered, the same equity exists against the heir. The payment by the administrator was not officious. It is not the act of a stranger, who endeavors to make one his debtor by payments on his account, against his will and without his request. If, indeed, the administrator had known the personal estate was insolvent, and voluntarily paid debts beyond it, that might be taken to be with a view of intermeddling with things that did not concern him, and place him on the footing of an officious stranger. He would not be permitted by an act of mere unauthorized forwardness, beyond his known obligations and duty, to make himself the creditor of the heir, and draw into this jurisdiction a question purely legal — debt or no debt. But the bill states here the embarrassments of the estate, its large but uncertain amount, and that the payments were made by the administrator from the best motive, namely, to save cost and promote the interest of the defendants, who were his nephews and nieces. I think a demand thus arising cannot but be felt by everybody to be just and entitled to satisfaction in some court.

Then as to the jurisdiction of this Court: It is denied, because there is a remedy at law. It is said that the question of debt or not is one of law. True; but for many debts which the law recognizes, a remedy may be sought in equity. Thus debt by simple contract to the executor himself may be enforced here, and a discovery had of the real estate. In truth, however, the demand of these plaintiffs is not a debt for which an action would lie at law, either against the heir or (72) administrator de bonis non, or, at any rate, it is a very doubtful right. It is for money paid by the first administrator himself. Can that be said to be a debt from the intestate to the administrator, for which an action at law can be sustained against the heir or administrator de bonis non, as such? I suppose not, because it had its origin since the death of his intestate. It is only a debt in this Court, upon its principle of substitution, which places the administrator here, as the law does an assignee of the debt. No injury can arise to the heir, but rather a benefit, by the jurisdiction. The personal estate is still the primary fund, and hence the administrator de bonis non is a necessary party, and the heir is at full liberty to show assets in the hands of either the first or last administrator. The debt is fixed conclusively by a judgment at law against the administrator, unless the heir can show collusion. But here he is at liberty to contest the debt himself, with the aid of the administrator.

But even if there was a remedy at law, it must involve an account of the whole administration by the first administrator; and per se is a proper ground of jurisdiction in equity, concurrently with a court of law.

PER CURIAM. Declare, that the plaintiffs have the right in this Court to be substituted in the place of those creditors of the intestate whose debts the testator of the plaintiff paid in good faith, so far as those debts exceeded the personal assets of the intestate which came to the hands of the plaintiff or their testator. Declare further, that such right of substitution exists against the present personal representative of the intestate, and against his heirs, after the personal estate shall have been exhausted; and reverse the decree of the court below, with costs against the appellees, and remand the cause.

Cited: Scott v. Dunn, 21 N.C. 427; Perry v. Adams, 98 N.C. 172;Smith v. Brown, 101 N.C. 350; Turner v. Shuffler, 108 N.C. 646; Mortonv. Lumber Co., 144 N.C. 34; Publishing Co. v. Barber, 165 N.C. 489.

(73)