Mallard v. . Patterson

MkrkiixoN, C..-J. after stating the case: This proceeding has been greatly delayed and neglected by the parties, particularly so by the defendant, and possibly to his prejudice in respects not remediable here. We can only deal with errors assigned, or such as appear upon the face of the record proper • The plaintiffs, in the orderly course of procedure, filed their verified complaint alleging sufficiently a cause of action. The defendant was allowed time to file his answer. This he did not do promptly. An answer appears among the papers— when this was placed among them does not appear — and it *258 was not verified. It was, therefore, no sufficient pleading, and could not be treated as such, certainly, in the face of objection. Alford v. McCormac, 90 N. C., 151. After the lapse of five years or more, the defendant asked to be allowed to verify this answer, or to file a new one properly verified. Clearly, he was not entitled to do so as of right, It was discretionary with the Court to allow or disallow his application, or grant the same wi h limitations. The Court allowed him to answer, alleging “meritorious” defences, but not to avail himself of the statute of limitations. This the Court might do, and its exercise of discretion in such respect is not reviewable in this Court. The first four exceptions to the account stated by the Clerk relate to his refusal to allow the defendant credit for certain sums of money paid by him to certain of the next of kin of his intestate within twelve months next after his first publication of notice to creditors of his intestate to present their claims to him, &c. Regularly, the administrator should pay all debts due creditors before he distributes the estate, or any part of it, to the next of kin of his intestate. He fails to do so at his peril, unless the claim was not presented to him until after the lapse of twelve months next after the first publication of notice given by him to creditors to present their claims as required by the statute (The Code, §1421). In the latter case, in an action upon such claim, he will not be chargeable with such sums of money as he may have paid in satisfaction of distributive shares. The statute (The Code, § 1428) so expressly provides. In this case, not a single claim sued upon, or the subject of this proce ding, was, so far as appears, presented to the defendant within twelve months from the first publication of the general notice to creditors to present their claims to the defendant, and the sums of money paid by him to distributees were all paid years before this proceeding began. The statute just cited provides thát, in such *259 case, "the executor, administrator, or collector, shall not be chargeable for any assets that he may have paid in satisfaction of any debts, legacies or distributive shares before such action was commenced.” The purpose is to relieve administrators, executors and collect >rs from liability for assets they may pay or distribute to á person or persons entitled to have the same as to claims not presented within twelve months after the first publication of general notice to creditors, and as well to facilitate and encourage the prompt settlement of the estates of deceased persons. It may be, that if an administrator should, with knowledge of existing debts against his intestate’s estate, collu-sively so pay or distribute assets to creditors or distributees, he would not be relieved from liability as to debts not so presented, but, so far as we can see, no fraud or collusion is imputed to the defendant in tins case. We are, therefore, of opinion that the defendant ought not to have been charged with the several sums of money he paid to the dis-tributees. We have examined the other exceptions, and think that they are without merit. It will serve no useful purpose to advert to them further. There is error. The account must be corrected in accordance'with this opinion, and the judgment accordingly modified, and, as so modified, affirmed. Error. Judgment modified.