Marshall v. . Kemp

AdaMS, J. The clerk of the Superior Court of New Hanover revoked Kemp’s letters of administration on 9 October, 1922. The jury were instructed that Kemp thereafter held the money on deposit at his peril and if they found the facts to be as the witnesses had testified, the answer to the first issue should be “Yes,” and to the second the full amount of *493 the plaintiffs claim with interest thereon from 25 September, 1922. The instruction implied either that Kemp’s liability was definitely fixed when the letters were recalled or that by virtue of his qualification as administrator he was an insurer of the assets coming into his hands. In our opinion neither of these positions can be maintained. The liability of a public officer differs from that of a trustee or a bailee. The general rule is that an officer who enters into an obligation to account for money received by virtue of his office insures the safety of all funds received by him in his official capacity, — insures, as Justice Rodman said, against loss by any means whatever, including such losses as arise from the act of God or the public enemy. Comrs. v. Clarke, 73 N. C., 255. In Havens v. Lathene, 75 N. C., 505, Chief Justice Pearson expressed the same opinion by saying that such officer is accountable as a debtor who can relieve himself only by payment. His liability is founded on public policy and the evil consequences which would follow from a less rigid rule as well as on the language of his official bond. Wilmington v. Nutt, 78 N. C., 177; Morgan v. Smith, 95 N. C., 396; Board of Education v. Bateman, 102 N. C., 52; Presson v. Boone, 108 N. C., 78; Smith v. Patton, 131 N. C., 396. See, also, U. S. v. Prescott, 3 How., 578, 11 Law Ed., 734; U. S. v. Morgan, 11 How., 154, 13 Law Ed., 643; U. S. v. Dashiell, 4 Wall., 182, 18 Law Ed., 319; Smythe v. U. S., 188 U. S., 156, 47 Law Ed., 425. The rule laid down for the administration of estates is not so exacting. An executor or administrator is held to the liability of other trustees; he is therefore not an insurer. He must faithfully execute his trust and act in relation to it with due diligence. Eor negligence or a want of ordinary care which evidences bad faith of course he is answerable. “Administrators, like other trustees,” said the Court in Woody v. Smith, 65 N. C., 116, “are not to be held liable as insurers or for anything but mala fides or want of reasonable diligence.” All that sound public policy requires is good faith and ordinary care (Nelson v. Hall, 58 N. C., 32) ; for, as suggested by Chief Justice Nash (Deberry v. Ivey, 55 N. C., 370), if they cannot be protected by an honest endeavor to perform their duties responsible men will rarely incur the hazard of an administration on a decedent’s estate. Beall v. Barden, 39 N. C., 76; Williamson v. Williams, 59 N. C., 62, 66; Atkinson v. Whitehead, 66 N. C., 296; Dortch v. Dortch, 71 N. C., 224; Mendenhall v. Benbow, 84 N. C., 646, 648; Torrence v. Davidson, 92 N. C., 437; Syme v. Badger, 92 N. C., 706, 715; Halliburton v. Carson, 100 N. C., 99, 108; Moore v. Eure, 101 N. C., 11, 16; Tayloe v. Tayloe, 108 N. C., 70; Smith v. Patton, supra; Twiddy v. Mullen, 176 N. C., 16; Cobb v. Fountain, 187 N. C., 335. The duty of an administrator in dealing with assets in his possession is to he measured by the standard set up in these cases. Kemp’s liability, *494 therefore, is not to be determined as a matter of law solely by tbe clerk’s order setting aside tbe letters tbat bad been issued to him in New Hanover County. Tbe plaintiff contends tbat these letters were void because tbe clerk in New Hanover was without jurisdiction; but this was tbe question tbat Kemp undertook to contest. It is true, be admitted tbat Ryan at tbe time of bis death was a resident of Pender; but in doing so be did not necessarily admit tbat Ryan bad bis domicile there. C. S., 1; Roanoke Rapids v. Patterson, 184 N. C., 135; In re Martin, 185 N. C., 473; Thayer v. Thayer, 187 N. C., 573; Tyer v. Lumber Co., 188 N. C., 268. And while be was not required in law to appeal from tbe clerk’s order (Pate v. Oliver, 104 N. C., 458), be bad tbe legal right to appeal therefrom to tbe Superior Court and from an adverse ruling thence to tbe Supreme Court. Constitution, Art. IV, secs. 12, 22; C. S., 633, 637, 638; Rush v. Steamboat Co., 67 N. C., 47; Rhyne v. Lipscomb, 122 N. C., 650. Findings of fact are essentially involved in tbe question whether in contesting tbe right to administration and tbe plaintiff’s claim to tbe deposit Kemp was moved only by an honest purpose to protect tbe assets in bis bands and to discharge tbe duties imposed upon him by tbe law, or whether be was in collusion with Cooper or was impelled by an evil motive or acted in bad faith or by perversely contending with tbe plaintiff caused tbe loss of tbe money, having reasonable cause to believe tbat be was not entitled to tbe letters of administration. Any competent evidence relating to these contentions should have been submitted to tbe jury either under tbe first issue in tbe record or under tbe issue tendered by tbe defendant; and for error in tbe instruction given tbe defendants are entitled to a new trial. New trial. Stacy, C. J., not sitting.