State Ex Rel. Roper v. Burton

The principal question involved in the controversy before us is, was Jones W. Burton, administrator d. b. n. of Charles Roper, and the sureties on his administration bond, liable to the plaintiffs by reason of the failure or neglect of the said administrator d. b. n. to collect or account for the proceeds of the sales of the slaves made by Chalmers L. Glenn under the decree of the Court of Equity of Rockingham County, made at the Fall Term, 1859, of said Court? And this will depend upon the further question, was Chalmers L. Glenn (and the sureties on his administration bond) liable, as administrator, for the (537) proceeds of the sales of said slaves?

It is insisted by the plaintiffs that the slaves were sold by Chalmers L. Glenn as administrator of Charles Roper, deceased, for settlement and distribution, and not for a "division" of the slaves among the next of kin, and that the referee erred in his ninth finding of fact, as set out in the second exception. If there was any competent evidence to support the finding of fact, it is too well settled to need citation of authority that the finding of the fact by the referee, approved and affirmed by the judge below, is conclusive and cannot be reviewed by this Court. Was there any evidence to support the finding and to show that Chalmers L. Glenn, not as administrator acting in the due course of the administration of the assets of the estate, but as commissioner, appointed by and acting under the decree of court as such, to make the sales of the slaves for partition among the next of kin under the direction of the court?

The learned counsel who so ably argued the cause in behalf of the plaintiff says:

"Before partition could be asked for and made, the slaves must have passed from the possession and control of the administrator, Glenn, into the possession of the next of kin, as tenants in common, and not as distributees. The assent of the administrator must be given to pass the property to the next of kin, and must appear by some visible sign or act. Here the next of kin were scattered and even unknown, and all who were known evidently regarded the slaves as in the possession and control of the administrator as such. There was no purpose to change such possession, except by sale, the proceeds of sale to be and remain in the hands of the administrator as such, under the security of his bond for the safe custody of the money. Glenn took notes for the purchase-money of the slaves in his own name as administrator, collected the money in part, and loaned some of it in his own name as administrator (538) of Charles Roper. After the death of Glenn, the administratord. b. n., Jones W. Burton, received the notes and bonds as a part of the estate of the intestate, Roper, so considered and treated them, and returned them as such, and brought suit and took judgments on said notes and bonds as administrator of Roper, and collected some portions of it as the estate of his intestate."

It abundantly appears from the evidence that the slaves were not needed in the administrator of the estate to make assets to pay debts, and it appears from the record that, at the November Term, 1857, of the County Court of Rockingham, the widow of Charles Roper being entitled to one-half of the slaves, commissioners theretofore appointed for that purpose allotted to the widow certain slaves (naming them), and certain other slaves (naming them) "to the legatees." And it furthere [further] appears from the record that, for the years 1858 and 1859, the slaves allotted to the legatees were hired out by "C. L. Glenn, administrator for the legatees of Charles Roper."

It further appears that the next of kin were scattered in different States, and their names and residences could not all be ascertained, and certain of them, acting under the advice of learned and eminent counsel, filed a bill in equity for a sale of the slaves. Judge Dillard says in his evidence: "The negroes having been divided," a bill in equity was filed in the name of William M. Roper and others (next of kin of Charles Roper), "for the sale of negroes which had been set apart to the next of kin," etc.

The record shows that the application for the sale was not made by the administrator "for the purposes of paying debts, or distribution, or both, under chapter 46, section 17, Revised Code, but by some of the next kin of Charles Roper, for partition, as allowed in chapter 82, (539) section 18, of the Revised Code, who alleged that, besides the plaintiffs named in the bill, Charles Roper, deceased, had two brothers and four sisters, who left the State of Virginia, "their former place of residence," twenty years or more since, and had not been heard from, either by the petitioners or by the said administrator, after "diligent inquiry," and are presumed to be dead. They further say that "slaves are now selling for a fair price, and, in view of the possibility of other next of kin of Charles Roper being discovered thereafter, they are advised, and the administrator, C. L. Glenn, concurs, that it would be best to sell the said slaves and distribute the proceeds, together with all the other personal estate, to them as such next of kin, under proper provisions for he benefit of others, should they be discovered," etc.

The administrator answered, and after admitting facts stated in the petition and asking the court "to see that he is amply protected before it shall decree" that the complainants are entitled to the whole of the estate, "upon the presumption that others of the next of kin are dead," he says that he concurs in the opinion "that it will be best to sell the slaves," etc.

There was a decree for sale, and a sale in pursuance thereto, as set out in the ninth finding. After the allotment and assignment of one-half of the slaves to the widow, and the other half "to the legatees," by an order of the court, it appears from the evidence that C. L. Glenn hired them out "for the legatees."

It will be observed that the slaves were not sold upon the application of the administrator, as provided in chapter 46, section 17, of the Revised Code. He had administered the estate, had paid its debts, and was ready to turn the slaves over to the persons entitled to them, and did deliver one-half of them to the widow and held the other half and hired them out "for the legatees," or distributees, until, upon their application, they were sold by him under a decree of the Court of (540) Equity, and the record shows that he made the sale "for the legatees," acting under the authority of the court, and there was ample evidence to support the finding of fact, and, as was held in Fanshawv. Fanshaw, 44 N.C. 166, "he and his sureties were certainly not liable upon his administration bond for his default," if there had been any, and it is but just to his memory to say that we think the record discloses the fact that the administrator, Glenn, acted with careful regard to the interest of the next of kin of his intestate, and the proceeds of the sales of slaves made by him were as well secured as reasonable foresight could have secured them (certainly as well secured as the slaves would have been) and the losses, as shown by the evidence, occurred after he was killed, while in the Confederate army, on 17 September, 1862,; and, upon the facts disclosed, it is by no means certain that, under the ruling of this Court in Worthy v. Brower, 93 N.C. 344, and Grant v. Reese,94 N.C. 720, that there was any default for which, in any event, he or his sureties could have been held liable.

We think Fanshaw v. Fanshaw, supra, fully sustains the referee in his conclusions of law, and his Honor below in his rulings as to the non-liability of the administrator and his sureties on his administration bond. But it is said by counsel for appellant that, in Fanshaw's case, the Court held "that John Fanshaw, as administrator, had no rightful authority to sell the slaves until he had obtained an order of the county court for that purpose, and it is not pretended that he ever did obtain such an order." In our case he (Glenn) did obtain an order to himself, as administrator of Charles Roper, to sell the slaves. This is a double misapprehension. 1. Fanshaw did sell under the authority of an order of the court, as commissioner, and, although "he returned an account of the sales of the slaves as having been made by him as administrator," the Court held that he and his sureties were not concluded (541) by that return. 2. Glenn did not obtain an order to himself, asadministrator of Roper, to sell the slaves. The record shows that the order to sell the slaves was made, not upon the application of Glenn as administrator, but upon the application of the next of kin; and, though he took the bonds of he purchasers to himself as administrator, he reported the sale as made by him "for the legatees," and did not report it as made by him as administrator, as was done in Fanshaw's case, and in that respect this case is stronger for the defendant.

But, without reference to the liability of Glenn and the sureties on his administration bond, it is insisted by the learned counsel for the plaintiff's that, as the notes were made payable to Chalmers Glenn as administrator, and after his death and the appointment of Burton as administrator d. b. n. in 1867, the latter received the notes into his hands as administrator d. b. n. as a part of the estate and assets of his intestate as rendered in his inventory, brought suit on some of the notes in his name as administrator d. b. n. and, on going into bankruptcy, rendered a statement of them in his schedule of debts as due from Smith and himself to himself as administrator d. b. n., and actually received dividends, as such administrator, from the assignee in bankruptcy, he is estopped and cannot be heard to deny his liability and the liability of the sureties on his bond therefor, and for this position he cites, among other authorities, Humble v. Mebane, 89 N.C. 410, and Burke v. Turner, 90 N.C. 500. These cases only go to the extent of holding that where a guardian (and the same rule would be applicable to any other fiduciary) has received money by virtue of his office as guardian and in trust for his ward, he is chargeable with the money so received, and neither he (542) himself nor his sureties can be heard to say that he is not.

There is nothing in the ruling of his Honor below in conflict with this position. On the contrary, in accordance with it, the administratord. b. n. and his sureties were held to be chargeable with the money actually received on account of the proceeds of the sales of the slaves, and this would have been so without reference to the liability of the original administrator; but when the liability for the slaves as assets in the hands of the administrator ceased, as it did — when they were surrendered as not needed to pay debts, and first divided between the widow and the next of kin, and afterwards sold for partition at the instance of the next of kin — they became, in a legal sense, goods administered, and the liability of the first administrator as such, and that of the sureties on his bond, ceased, and no responsibility or liabilities attached to Glenn other than as commissioner acting under and subject to the order of the court as to the collection and disposition of the proceeds of the sale of the slaves, as, and no more than, any other person appointed by the court to sell would have been, and any mistake as to his rights and duties on the part of the administrator could create no liability as against the sureties on his bond, except as to the sums received by virtue of his office. Fanshaw v. Fanshaw, Humble v. Mebane, and Burke v. Turner, supra.

This renders all the other exceptions of the plaintiffs immaterial, and relieves us of the necessity of considering them, except the eleventh, which relates to the failure of the referee and the court below to charge the administrator with interest on the sums named.

The referee finds as a fact, in substance, that the administrator d. b.n. did not use the money collected either from the assignee in bankruptcy or from the estate of Chalmers Glenn, the former administrator, and that he could not distribute the sum because all of the next of kin of Charles Roper, deceased, had not been ascertained. The evidence shows that the payment of the money to the next of kin was delayed (543) because of the fact that the names and residences of all the next of kin of Charles Roper could not be ascertained, and they were not ascertained till by the report in the present action, but the objection is not based upon the ground that there was no evidence to support the finding, or that the finding was upon incompetent evidence, and we cannot review the finding of fact, except for those causes. Upon the facts found, the defendant was not chargeable with interest. Grant v. Edwards,92 N.C. 442, and cases cited.

There was no error in the ruling of his Honor below of which the plaintiffs can complain, and the judgment must be

Affirmed.