Whisnant v. . Price

WALKER, J., dissenting in part, CLARK, C. J., concurs in the dissent. PLAINTIFF'S APPEAL. This action is brought to secure the cancellation of two notes, one for $1,500 and one for $900, given by plaintiff to C. C. Gettys, defendant's intestate, and secured by mortgage on plaintiff's lands. The plaintiff prays "for an accounting; for judgment for such penalties as may be due him on account of usurious interest charged and paid; the cancellation of his papers now held by the estate of the said C. C. Gettys," etc. The only question presented on plaintiff's appeal relates to the receiving of usurious interest by the administrator after the death of the intestate, C. C. Gettys. It is admitted that no usurious interest was received by Gettys during his lifetime on either of the notes. Counsel for plaintiff admit they are unable to find any authority in this State to the effect that an intestate's estate can be penalized for usury *Page 651 charged and received by the administrator and they cite none from other States. The uniform rule is that no action will lie against a personal representative of a deceased person except upon some claim which existed against the deceased in his lifetime. For a claim or demand accruing wholely in the time of the administration, the administrator is liable only in his personal character. The Court of Appeals of New York considered the subject in Fellowsv. Longyon, 91 N.Y. 324, and declared substantially that if usurious interest is charged by a guardian, an action will not lie (613) against the wards' estate, but that the same must be brought against the guardian individually. There is a good reason for this law, . . . The estates of infants and persons who have no control or management thereof are always under the control of the court, and the administrator or executor being an officer of the court, it is their duty in every way to preserve the estate and abide the law, and a failure to do so is a devisavit for which the administrator and his bondsmen only are liable. In Malone v. Davis, 67 Cal. 279, the Court uses the following language: "Nothing is better settled than that an executor or administrator is not answerable in his official character for any cause of action that was not created by the act of the decedent himself. In actions against the personal representative on his own contract and engagements, though made for the benefit of the estate, the judgment is de bonis propriis, and he is, by every principle of legal analogy, to answer it with his personal property." 30 Cyc., 1090; Eustace v. Johns, 38 Cal. 3. Upon plaintiff's appeal, we conclude that the assignments of error cannot be sustained. DEFENDANT'S APPEAL. The defendant excepts because the judge refused to render judgment for the full amount of the $1,500 note with interest thereon from its date, December, 1910. The court rendered judgment for $838 on that note with interest, and also for the full amount of the $900 note and interest, less the credits recited in the eighth finding of the referee's report, which were payments made as interest to the administrator. We see no error in this ruling, and it is not necessary to invoke the principle laid down in Churchill v. Turnage, 122 N.C. 426, and in Owen v.Wright, 161 N.C. 129, to support it, as the usurious interest was not received by the intestate but by his administrator. The facts are that plaintiff owed one Ponder a debt which the defendant's intestate agreed to settle for plaintiff. To secure him, plaintiff *Page 652 paid the intestate $455 in cash, and as security deposited with him the $1,500 note and mortgage. The Ponder debt turned out to be $1,293, which the intestate paid for plaintiff, using the $455 for that purpose. This left the sum of $838 due the intestate by plaintiff, with interest. Under the ruling of the court the estate of the intestate is credited with all the payments made to the administrator since intestate's death. It is admitted that nothing was ever paid to him. We see nothing in this of which defendant can justly complain. Affirmed.