Sanders v. . Sanders , 17 N.C. 262 ( 1832 )

Copies of a judgment at law in favor of the plaintiff against Reuben Sanders and of a decree establishing the equitable set-off of the latter were filed. We do not mean to decide the question whether an administrator or executor, who goes beyond his assets in payment of debts, without showing a special reason for doing so, can claim to be reimbursed out of the real estate. Here the administrator has made out a very clear and strong case why he was compelled to pay debts beyond the amount of his testator's personal estate, and has given a very satisfactory reason why he, in his inventory, charged himself with the full amount of the apparent debt due his intestate from Reuben Sanders, and how it was afterwards diminished by throwing on the estate a claim which Reuben Sanders had on the copartnership, by the insolvency of White, one of the partners. We think that the plaintiff did not act improperly in charging himself with the full amount of that debt in his inventory, and that it was his duty to allow the decree obtained by Reuben Sanders against him, an account of White's insolvency, as a set-off against it. If by these means he was charged and did pay to creditors beyond his assets, he has a fair claim in this Court to a reimbursement.

Next, as to the proof. The decree in the suit of Reuben Sanders against the copartnership fixes, as to the defendants, both the amount of his claim and the liability of the administrator to the sum decreed against him for the insolvency of White, for that would have (264) been its effect in a suit at the instance of Reuben Sanders to subject the real estate to its payment, and such must be its effect in favor of those who are substituted to his rights. The conclusive effect of that suit arises from the peculiar relation subsisting in our law between the personal representatives and the heir. I call it peculiar, for I believe it nowhere else exists. Here they are not strangers as they are in England, but there is a quasi privity between them, as the former defends as well for the heir as for the other creditors, the legatees, and next of kin. The judgment against him, in the absence of fraud, is conclusive upon all, except as to the plea of fully administered. The law allows the heir to contest that, when brought in to show cause, not why the creditor should recover his debt, but why he shall not have his judgment, obtained against the executor or administrator, levied out of the real estate. It is upon this privity that an executor or administrator, who has disbursed beyond his assets, stands in a different situation from a mere officious intermeddler, who obviously pays money for another, and then claims reimbursement. What may be the effect of such a state of facts this case does not require us to decide. The debt being thus conclusively fixed on the heir, there being no fraud, no collusion, it remains to prove the expenditure of asset, and as to that an account must be taken.

PER CURIAM. Direct an account.

Cited: Scott v. Dunn, 21 N.C. 427; Smith v. Brown, 101 N.C. 350;Publishing Co. v. Brown, 165 N.C. 490.