Hester v. . Lawrence

Davis, J. (after stating the case). This is “ a special proceeding,” authorized by § 1448 of The Code, to compel the defendant “ to an account of his administration, and to pay *324 the creditors what may be payable to them respectively.” “ Its purpose is to ascertain what the assets of the estate are, and distribute the same among all the creditors entitled to share them, according to their respective rights.” Dobson v. Simonton, 93 N. C., 268. Section 1451 of The Code directs that the Clerk shall advertise for all creditors of the deceased to appear, &c., and § 1452 directs that “ the advertisement shall be published at least once a week for not less than six weeks in some newspaper,” &c. The importance of a compliance with the requirements of the statute is rendered apparent, not only by the particularity with which the manner in which advertisement shall be made, or notice given, is prescribed, as will be seen by reference to the section, but by the consequences of the final report and judgment. See §§ 1462, 1467, 1468 and 1469 of The Code. But it is insisted that, while a creditor might take advantage of this want of notice, an administrator who has been guilty of devastavit cannot complain, and that in the case before us no exception was taken before the Clerk. This is a mistake. As the judgment is to bind the administrator or executor to the extent of the assets which he. may have received, or ought to have received, he has a right to-be protected, by the judgment of the Court, against su-its by other creditors, and it is quite clear that creditors (other than parties appearing) would not be bound unless notified in the manner prescribed or by personal service of notice. It appears in the case before us that there were other claims against the estate; that there were suits pending in other counties (two in Granville and one in Vance), and it does not appear that any notice to creditors was given, other than that posted at the court-house door, and it does not appear that that was posted for thirty days, as required; whereas, the Clerk was required, in addition thereto, to pub *325 lish the notice for at least six weeks in some newspaper “ most likely to inform all the creditors.” Notice was not given as required The Code, and the omission could be taken advantage of before the Judge as well as before the Clerk. (§ 1448); and the defendant’s first exception should have been sustained. The Court below seems to have acted upon the idea that, as the administrator had paid over to the “ heirs” or next of kin sums more than sufficient to pay the plaintiffs’ judgment against the estate, it was unnecessary to state an account or proceed further. Undoubtedly, as against creditors, such payments to next of kin would not protect the administrator, but the proceedings under the statute contemplated a “final report and judgment,” which shall settle the account of the administrator and close the administration ; and there was error in overruling the defendant’s second exception. The other exceptions relate to the jurisdiction and power of the Clerk to render the judgment set out in the record. Conceding that the Clerk has a special jurisdiction, distinct from his general duties as Clerk of the Court, and that he had jurisdiction to render judgment in this case, the proceedings and judgment must be in conformity with the power conferred upon him. Brittain v. Mull, 91 N. C., 498. As to the nature of the judgment to be rendered against the administrator or executor, and the execution thereon, we refer to §§ 1469, 1470, 1471 and 1509 of The Code. As was said by the Chief Justice in Brooks v. Headen, 88 N. C., 449, “ we do not mean to intimate that the plaintiff may not in the same action obtain a personal judgment, and then pursue his remedy against the intestate’s estate, personal-and real, in their proper order, for its satisfaction.” It is not improper to say 'that such a judgment may be rendered, but in view of the errors in overruling the other exceptions of the defendant, the form of the judgment becomes immaterial. Error. Judgment reversed.