Reeves v. . McMillan

Smith, C. J. (after stating the case.) The facts found are so meagre and indefinite that we are at a loss to know what considerations induced the defendant’s departure from the *482 scope and limit of his official duties in administering the personal estate, and employ the fund in his hands in the effort to secure the real estate. Certainty he had no legal right thus to use the money that had come into his hands without the sanction of those to whom it belonged, and who were legally competent to give such consent; nor does it appear that any interest of the distributees has been sub-served thereby, or they in anywise benefited by the expenditures. Certainly good faith and generous intention will not excuse the misappropriation of the trust funds to unauthorized objects. The lands descended to the heirs-at-law who may be the distributee^, but they, and not the administrator, must look after their interest in them. The Code, which directs the personal representative to make his “ rentings of real property by auction,” § 1413, has been construed, in using the- term “ real estate,” to refer to leasehold estates in land which an intestate may own, and to confer no power upon him to enter upon and make lease of lands which have descended. Lee v. Lee, 74 N. C., 70. So it has been repeatedly held, that the taxes assessed on land after death fall upon the owner, and do not constitute a legitimate item in an administration account, unless with the assent of the party whose distributive share would be lessened thereby, and to such extent only. There are no facts here, which, so far as the record discloses — and we can only know what it contains — tending to explain or to excuse the devastavit to the prejudice of the numerous distributees. There is no error in the ruling, and the judgment must be affirmed. Affirmed. Since the opinion in this qase was filed, our attention has been called to an erroneous recital of the amount of the *483 vouchers to which the administrator is entitled as a credit, and counsel of the opposing parties submit a statement in which the true total sum is admitted to be $18,770.60, made up of $9,231.88, overlooked, and $9,538.74. The mistake originated in the manner of stating the case on appeal, in which the Clerk, in stating the account, charges the administrator with $21,970.76, and adds: “I allow him the following sum, as per vouchers filed, $8,591.94,” which was understood to be intended to be raised to the sum mentioned in the written agreement of counsel filed. The correction of the error is now made by this memorandum, to which we will only add that no detrimental consequences could follow, if allowed to remain, as we only passed upon certain charges excepted to, and, in disallowing them, affirmed the judgment rendered in the Court below.