Neal v. . Becknell

RuettiN, J, In their argument here, the defendants’7 counsel did not strenuously insist upon the point that the’ bond sued on was rendered void, by reason of the subsequent revpcation of the letters-of administration granted to *302 Fraley isa 1362, but still; they did nut abandon it, and thereby imposed upon us the duty of determining it. If any authority is needed in regard to it, the case of Smith v. Collier, 3 Dev.& Bat. 65,is directly in point. There, it was held that the bond given by an administrator, whose appointment was subsequently revoked and another appointed in his stead, might be sued on by his successor in office, or by the next of kin, in case of his failure to account fairty for the assets that came to his hands. This being so, and it being admitted in the answer, as well as found as a fact by the judge, that there came to the hands of Fraley as administrator assets of the estate of his intestate to be by him administered, it is certain that the plaintiff is entitled to the decree for an account, unless there be something in the defences set up that takes away that right. To have that effect, the defence must be such as, if true, meets the whole of the plaintiff’s demand for an account, (such as bars the account as is said in the case of the Railroad v. Morrison 82 N. C., 141) since at this stage of the case, nothing else is heard or considered, but the bare right to the decree for the account, and the courts never undertake in advance, to say, what shall constitute, or not, an item of charge in the account, but leave all such matters to be determined upon exceptions thereto. The rule of the courts of equity in this particular, and the reason upon which it is founded, are so clearly stated by Peakson, J. in Dozier v. Sprouse, 1 Jones Eq., 152, that we cannot do better than refer to that case. Apply the rule to the defences set up in this action, and what is the result ? The matter involved in the first of the proposed issues did go to the whole of the plaintiff’s demand, and if true, defeated his right to have any account as against these defendants. His Honor therefore rightly considered it before making the decree — holding as a conclusion of law, upon the facts found by himself, that the *303 bond declared on was not annulled by reason of the revocation of the letters, which had been issued to the principal obligor therein, in which conclusion, as we have seen, this court fully concurs. The other two issues plainly refer to matters that pertain to the account, aDd should properly, as said by his Honor, be heard only upon exceptions to the report of the master. There is no error. Let this be certified to the superior court of Wilkes county, to the end that the cause may be proceeded with. No error. Affirmed.